H. W. Stevens for relator. Assent is not implied unless there is some obligation on the party against whom the implication is raised: Hosmer v. Wilson 7 Mich. 301; Ward v. Warner 8 Mich. 520; Strong v. Saunders 15 Mich. 345; the mere fact that a claimant has received less than he was entitled to, does not amount to a waiver of his rights: Miller v. Auditors 41 Mich. 4.

E. G. Stevenson and O'B. G. Atkinson for respondent.

MARSTON, C. J. The relator was judge of probate of St. Clair county, and he claims the board of supervisors reduced his salary, and asks for a mandamus to compel the board to pay him according to the amount as first fixed. The board answered, and an issue of fact was formed and certain questions sent to the circuit court for a determination and answer. The circuit judge certifies as appears in the margin

herewith.*

It is now claimed that an implied assent is not binding on the relator and that the facts show he made protest to the county treasurer against receiving the reduced salary in full payment.

We have no doubt but that an implied assent is sufficient, and that from the very nature of the case nothing farther

*As to the three several matters or questions submitted, I findFirst. That the said relator did assent (not expressly but impliedly) to the fixing of his salary in the fall of 1878, for the year 1879, but did not assent to the fixing it in the fall of 1879 for the year 1880. This implied assent was in ignorance of the law as afterwards declared by the Supreme Court in Douvielle v. Manistee 40 Mich. 585; and up to the announcement of the decision in April, 1879, the relator, as well as the board, understood that the board had full power and authority to fix the salary of the judge of probate from year to year.

Second. So far as the relator did assent, as above found, he assented that the salary should be fixed at such sum as "to the board should be just and reasonable."

Third. For the first quarter of the year 1879, the relator did accept, impliedly, full payment at the rate fixed by the board in the fall of 1878, but ever since the first quarter he has insisted upon his right to $1500 per year and since that has not accepted the payments made as a full payment, but only on account of salary.

My conclusion is that for the year 1879 the relator is not entitled to pay beyond the amount fixed by the board in the fall of 1878, which amount has been paid, and that for the year 1880 he is entitled to the amount he claims.

Port Huron, December 20, 1880.

E. W. HARRIS, Circuit Judge.

could be expected. Until the decision of this court in Douvielle v. Manistee 40 Mich. 585, there was almost, if not quite, universal acquiescence in the power of the board of supervisors to fix the salary of the judge of probate from time to time, so that no one thought of making any protest, but accepted the salary as fixed, and under such circumstances, the silent acceptance of the salary must be considered as an assent thereto, and binding upon them. We are also of opinion that a protest entered with the county treasurer cannot be deemed of any force or effect. That officer had no power to fix the salary or take any action with reference thereto, nor was it even a part of his duty to report such protests to the board. The protest, to have any effect, must have been made to the body having power to act in the premises.

Under the finding of the court the relator should receive at the rate of $1500 for the year 1880, and a writ will issue to that effect, but without costs.

The other Justices concurred.

EDWARD BAUGHMAN V. ELIJAH G. GOULD.

Sale-Misrepresentation of quantity—Recoupment.

The right of a purchaser of land, in an action against him for the purchase price, to recoup the excess in price due to the vendor's misrepresentation of the extent of the property, is the same whether the misrepresentation be willful or innocent.

Where the vendor of land, by misrepresenting its extent induces the purchaser to incur a liability for land which the vendor is unable to convey, the effect of the transaction, in the contemplation of the law, is a fraud upon the purchaser, even though both parties acted in good faith.

A purchaser's right on being sued by the vendor, to recoup damages for the latter's misrepresentation in a sale including both real and personal property, is not affected by the fact that the misrepresentation

45 MICH.-31.

referred to only one class of property, if the transaction was an entirety, and the consideration was not apportioned.

Error to Van Buren. Submitted Jan. 20. Decided Jan. 28.

ASSUMPSIT. Defendant brings error. Reversed.

Richards & Mills for plaintiff in error.

E. R. Annable for defendant in error.

GRAVES, J. Gould sold Baughman certain merchandise together with a small parcel of land for $1000. The lot was surrounded by a fence and there was a dwelling-house, a well and considerable ornamental shrubbery. It was represented by Gould that the lot included all the territory enclosed, and this representation was made by him and received by Baughman in perfect good faith. Both supposed it to be true, and Baughman in assenting to the purchase and in agreeing to terms relied upon it. The purchase of the goods and of the real estate was an entire transaction, although the price of $650 was assigned to the latter. When the parties adjusted the general consideration there was a balance of $157.40 still to be provided for, and Baughman gave hie note for it. It was subsequently ascertained that the representation made by Gould was incorrect and that part of the land within the enclosure belonged to another; that a small portion of the house was beyond the line and that the well and part of the shrubbery were wholly so.

Under these circumstances Gould brought this action upon. the note, and Baughman claimed to recover damages for the misrepresentation made relative to the premises. But under the judge's rulings the jury found in Gould's favor and refused to allow anything on account of the misrepresenta

tion.

Two points arise upon the charge: First, the circuit judge instructed the jury that there could be no recoupment unless Gould knew his representation was false or, at least, had means of knowledge that it was so superior to any possessed

by Baughman; second, that in case the note was given in part payment for goods and land together it would not be. competent to allow damages for the misrepresentation concerning the land.

We are not able to assent to either of these propositions. For the purpose of recoupment it is quite immaterial whether, as a question of morals, Gould was or was not at fault. The right to recoup was not dependent on it. There being in fact a misrepresentation, though made innocently, its deceptive influence was as effective, and the consequences to Baughman as serious in respect to actual damage as though it had proceeded from a vicious purpose. The result was a fraud on Baughman, in contemplation of law, and it entitled him to contend in Gould's action for the purchase money that the damage should be thrown on the latter. Converse v. Blumrich 14 Mich. 108; Steinbach v. Hill 25 Mich. 78; Webster v. Bailey 31 Mich. 36; Starkweather v. Benjamin 32 Mich. 305.

The circumstance that the misrepresentation was confined to the real estate whilst the consideration of the note included some part of the purchase price of both merchandise and realty is of no importance. There was but one trade and the consideration from Baughman was not apportioned. The object of the suit is to enforce performance of Baughman's share of the trade, and the claim of recoupment is founded on actionable conduct on the part of Gould in his share of it. The case seems to be within well-settled rules, and there is no occasion to cite authorities.

Judgment should be reversed with costs and a new trial granted.

The other Justices concurred.

2

45 484

108 197 45 484 112 365

45 484 122 253 45 484 8 8NW 71 S40AR 477 133 1134

EDWARD WIEMAN, JR., BY NEXT FRIEND V. JOHN P. MABEE

ET AL.

Libel-Bad moral character-privileged communication.

A communication, representing that a certain person was of bad moral character, and wholly unfit to teach and have the care of a district school, was made to a township superintendent, by persons interested in a particular school within his jurisdiction, for the sole purpose of preventing the issue to the person so charged, of a license to teach the school. Held, that it was a privileged communication, and abundantly justified by proof that he was a habitual blasphemer and profane person, and an open violator of the Sabbath.

A charge of bad moral character, if made generally, is not fully justified by proof of profanity and Sabbath-breaking.

A person is responsible for such meaning of his language as is most natural, and is actually by his own fault, accepted under the particular circumstances. But there is no responsibility for any other meaning than that which is shown to have been intended and actually understood.

An action for libel will not lie on a communication relating to personal character, if made in good faith and for an honest purpose by persons concerned, and to the proper person. Nor will it lie when such a communication is untrue, if it is not maliciously made.

Plaintiff brings error.

Affirmed.

Error to Macomb. Submitted Jan. 20. Decided Jan. 28.
CASE FOR LIBEL.
Irving D. Hanscom and A. B. Maynard for plaintiff in

error.

James B. Eldredge for defendant in error.

CAMPBELL, J. Plaintiff sued defendants for libel in publishing of him that he was a man of bad moral character, and wholly unfit to teach and have the care of a district. school. This charge was made in an affidavit made by some of the defendants, and a petition of others directed to the superintendent of schools of the township of Lenox, in Macomb county, and the papers were intended to prevent the licensing of Wieman as a teacher in the district where