entitled to notice to quit.27 Where a stranger to the owner, on his behalf and in his name, makes a lease of his property and the lessee has entered into possession under it, such lessee is not entitled to any notice to quit from the owner of the premises.28 And where no rent had been paid for twenty years before action brought, it was held that the jury had a right to presume that the relation of landlord and tenant had ceased, and that no notice to quit was necessary. 29 Where the tenant held over for two years, but without recognition from his landlord, he was held not to be entitled to notice to quit.30 In a case in Kentucky it was held that if a suit for the possession of land was dismissed for the want of notice, in a subsequent action for the same premises the former suit will be regarded as dispensing with the necessity of notice to terminate the tenancy, which was a tenancy from year to year. 31 And it has been held that no notice was necessary to the under tenants.32 In a case in California it was held that where a notice to quit was served on the original lessee, the notice bound an under tenant, who acquired possession from the tenant after its service.33 While in a case in New York the court held that a notice to quit given by the lessor to his immediate lessee who had continued to pay the rent was sufficient, although another was in possession of the premises.31 Where a parol agreement provided for the renting of premises for one month, and for each successive month thereafter until the landlord should want the premises for his own use, when the tenancy was to expire, it was held that this could not be considered as a tenancy at will or by sufferance. "It was an agreement," said the court, "for an indefinite number of months, subject to be terminated by a notice from the landlord that he wanted the premises. Under such an agreement the statutory notice of thirty days

27 Den v. Webster, 18 Tenn. 512; Chilton v. Niblett, 22 Tenn. 404; Glascock v. Robards, 14 Mo. 350; Den v. Westbrook, 15 N. J. Law, 371; Van Valkenbergh v、 Rahway Bank, 23 N. J. Law, 583; Ross v. Van Aulen, 42 N. J. Law, 49.

28 Yellow Jacket Silver Mining Co. v. Stevenson, 5 Nev. 233.

29 Crowther v. Lloyd, 31 N. J. Law, 395.

30 Den v. Snowhill, 23 N. J. Law, 448.

31 Corneillson v. Corneillson, 1 Bush. 153.

32 Roe v. Wiggs, 5 B. & P. 330.

33 Schilling v. Holmes, 23 Cal. 227.

4 Livingston v. Baker, 10 Johns. 270.

35

to a tenant at will or at sufferance, was not necessary.' Where a landlord sent to his tenant already in possession of the premises, written permission to remain two years longer free of rent, and tenant continued in possession without informing the landlord that he declined the terms offered, it was held that he would be deemed to have accepted them, and that upon the expiration of the term he could be dispossessed without notice to quit.36 "The writing," the court said, "could be construed as a notice to quit after the expiration of the two years."

The rule requiring notice to quit to be served on the tenant, being for the benefit of the tenant, he is of course at liberty in his written lease to waive his right by an express agreement to that effect.37 And when a landlord has once served notice to quit, his subsequent conduct may amount to a waiver of it. In Lucas v. Brooks, 38 the Supreme Court of the United States considered the question of the waiver of a notice to quit. In a proceeding in forcible detainer, the notice to quit, which was the foundation of the suit, was served in March, 1867, and required the premises to be surrendered in April, 1868. But there was evidence that a distress warrant was afterwards issued upon the affidavit of one representing himself to be the agent of the landlord, for rent sworn to be due for rent for the year ending April 1, 1871, which had been levied on the property of the defendant, who had given a forthcoming bond, the matter being still pending, This, it was contended, constitutes a waiver of the notice to quit, and entitled the defendant to a verdict. On this question Mr. Justice Strong remarked: "It is true the notice to quit might have been waived, and doubtless should have been regarded as waived by the distress warrant if it had been issued by the plaintiff, or by his authority. But waiver is always in part a question of intent, and there could have been no intent to waive if the act claimed to have been a waiver was either unknown to the plaintiff, or unauthorized by him, or not ratified by him." The court below had charged that if notice to quit was

35 People v. Schackno, 48 Barb. 551; People v. Goelet, 64 Ib. 476; s. C., 14 Abb. Pr. (N. S.) 130⋅ Woodrow v. Michael, 13 Mich. 187.

36 Hulett v. Nugent, 71 Mo. 132.

37 Hutchinson v. Potter, 11 Pa. St. 472.

88 18 Wall., 436, 455.

given, and afterwards a distress warrant was sued out to recover the rent, the presumption of law would be that it was sued out with the assent of the plaintiff, in which event he could not maintain the action unless the evidence satisfied the jury that the agent exceeded his authority. And it is held that the receipt of subsequently accruing rent is a waiver of the notice to quit.39 As to the length of time before the expiration of the tenancy, that it was necessary to give the notice to quit, it is, of course, well understood that in tenancies from year to year the rule required a six months' notice to be given.40 But in the case of tenancies for periods running less than a year, a different rule governed. By analogy the rule requiring a six months notice in tenancies from year to year, would only make necessary a half month's or a half week's notice in the case of monthly or weekly tenancies. But this analogy was not observed. Monthly and weekly tenancies were so brief that it was probably considered unwise to require merely a half month's notice or a half week's. Hence, in the case of tenancies running for periods of less than a year, the notice was regulated by the letting, and was equivalent to a period. Where the letting was for a quarter, it was necessary to give a quarter's notice, and in the case of monthly lettings, a monthly notice, 12 while in the case of weekly tenancies a week's notice was considered essential.43 But by an agreement of the parties the length of time required for the notice could be varied, and might be limited to end on a particular day or time. 44 However, if it was not otherwise agreed on, it was necessary that the notice to quit should

39 Prindle v. Anderson, 19 Wend. 391; s. C., 23 Wend. 616.

40 Right v. Darby, 1 Term, 159, 162, 163; Johnston v. Huddleston, 4 B. & C. 922; Parker v. Constable, 3 Wils. 25; Gullivar v. Burr, 1 W. Bl. 596; Jackson v. Hughes, 1 Blackf. (Ind.) 421, 427; Hanchett v. Whitney, 2 Ark. 241; s. c., 1 vt. 311; Barlow v. Wainwright, 22 Vt. 88; Hall v. Wadsworth, 28 Vt. 410; Silsby v. Allen, 43 Vt. 172; Hall v. Myers, 43 Md. 449; Ross v. Garrison,1 Dana, 36; Morehead v. Watkyns, 5 B. Mon, 229; Currier v. Perley, 4 Foster (N. H.), 219, 224.

41 Kemp v. Derrett, 3 Camp. 510.

42 Parry v. Hazell, 1 Esp. 94; Roe v. Raffan, 6 Esp. Cas.; Doe v. Scott, 6 Bing. 364; Currier v. Perley, 4 Foster (N. H.), 219, 224.

43 Peacock v. Raffum, 6 Esp. 4; Campbell v. Scott, 6 Bing. 362.

44 Tyler v. Seed, Skin. R. 649; Doe v. Bell, 5 D. & E. 471; Doe v. Charnock, Peak Cas. 4; Currier v. Perley, 4 Foster (N. H.), 219, 226.

terminate with the current period of the year,

or month, or week of the tenancy, as the case might be.45 might be.45 In New Hampshire, under their statute regulating notices to quit, the courts hold that the notice to quit may be made to quit at any day therein named, instead of the precise term of precise term of a year or period,46 The length of the notice to be given is now regulated by statute in most of the States, and instead of the six months' notice necessary at common law, only a three months' notice is now generally required. 47 In some of the States it has been provided that a tenancy at will or at sufferance shall be terminated by giving notice in writing to quit at a day named in the notice. 48 And in Illinois a tenancy from year to year may be terminated upon sixty days' notice.49 While in Louisiana, it is provided that fifteen days' notice shall be sufficient if no time is fixed in the lease for its determination.50

It is to be observed that a notice to quit, in order to be valid, should truly state the day on which the tenancy is to terminate. "If, therefore," says Mr. Chief Justice Shaw in a case in Massachusetts, "a person designate in his notice a day for the termination of his tenancy, which is not the day on which the rent is payable, or a day on which the tenancy can be legally made to expire, by a notice, the notice is unavailing and the tenancy may still continue. No one is obliged to regard a notice which fixes a day for the termination of a lease different from that on which a lease can be by law made to terminate; such a notice being one that neither party had a right to give, is treated as a nullity.

It is by no means necessary to name the pre

45 Right v. Darby, 1 D. & E. 156; Doe v. Bell, 5 D.& E., 471; Roe v. Ward, 1 H. Bl. 97; Doe v. Dunno. van, 1 Taunt. 555; Usher v. Moss, 50 Miss. 209; Anderson v. Critcher, 11 G. & J. 450; Prescott v. Elm, 7 Cush. 346.

46 Hazeltine v. Colburn, 11 Foster (31 N. H.), 466, 471; Currier v. Perley, 4 Fost. (24 N. H.), 219.

47 Virginia Code (1873), p. 969; sec. 5; West Virginia Code (1868), p. 526; Colorado Gen. Laws (1877), p. 474, sec. 1246; Missouri Rev. Stats. (1879), vol. I., p. 514, sec. 3077; Minnesota Statutes (1877), ch. 75, p. 820, sec. 40, Indiana Rev. Stats. (1881), sec. 5209; Kansas Gen. Stats. (1868), p. 540, sec. 5; Pennsyl vania Brightly's Purdon's Digest (1700-1872), vol. II., p. 880; New Hampshire Gen. Laws (1878), p. 575, sec. 2; Rhode Island Pub. Stats. (1882), p. 648, sec. 2; New Jersey Revision (1709-1877), p. 575, sec. 29. 48 New Hampshire Gen. Laws (1878), p. 575, sec. 1; Rhode Island Pub. Stat. (1882), p. 648, sec. 1. 49 Rev. Stat. (1874), p. 658, sec. 5. 50 Revised Code (1870), art. 2686.

cise day and date on which a tenancy is to expire, in a notice to quit, but it may be designated in general terms, if stated correctly." 51 HENRY WADE ROGERS.

51 Sanford v. Harvey, 11Cush. 93.

MISREPRESENTATION AS AFFECTED

BY INTENT.

"The

A misrepresentation, as defined by Bouvier, is: "The statement made by a party to a contract that a thing relating to it is in fact in a particular way, when he knows it is not so." From this definition, it must be inferred that a knowledge of the falsity of the statements at the time of making the contract, must exist in order to allow the person wronged by such statements to recover for the damages sustained; and so have some of the courts held.1 But the question of intent has received such different constructions by different courts, that it may not be amiss to give it a little consideration. Sewall, J., in Emerson v. Brigham,2 lays down the rule in the following words: rule has always been, I believe, that an action of deceit, or an action on the case for deceit, in a bargain or trade, is maintainable only where the deception complained of has been intentional on the part of the seller." The court in this case, quoted Justice Popham, who states the law thus: "If I have an article which is defective, whether victuals or any thing else, and I, knowing it to be defective, sell it as sound, and so represent or affirm it, an action upon the case lies for the deceit ; but, although it be defective, if that is unknown to me, although I represent or affirm it to be sound, no action lies, unless I warrant it to be sound.' In Boyd's Executors v. Brown, which was an action on the case for deceit, arising from false representations as to the credit of a third person, the court

4

1 Emerson v. Brigham, 10 Mass. 202; Chandelor v. Lopus, 2 Croke, 4; Bond v. Clark, 35 Vt. 577; Barber v. Morgan, 51 Barb. 116; Bartholemew v. Benley, 15 Ohio, 660.

2 10 Mass. 202.

3 Dyer, 75, in margin.

46 Barr, 310. See, also, Haly v. Tree, 3 T. R. 51; Foster v. Charles, 6 Bing. 369; Corbit v. Brown, 8 Bing. 33: Allen v. Addington, 7 Wend. 9; Ames v. Melward, 8 Taunt. 637; Hanar v. Alexander, 5 B. & P. 241; Vernon v. Keys, 12 East, 631.

said: "The question always was, did the defendant knowingly falsify or wilfully suppress the truth with a view of giving a third party a credit to which he was not entitled?" "If he make representations productive of loss to another, knowing such representations to be false, he is responsible as for a fraudulent deceit." The conflict that had existed between the Queen's Bench and the Exchequer was brought to a close by the decisions of the Exchequer Chamber in Evans v. Collins, in 1844, and in Ormrod v. Huth,5 in 1845. In the latter case, Tindal, C. J., said: "The rule which is to be derived from all the cases appears to us to be, that where, upon the sale of goods, the purchaser is satisfied without requiring a warranty, he can not recover upon a mere representation of the quality by the seller, unless he can show that the representation is bottomed in fraud; but if the representations were honestly made, and believed at the time to be true, there is no fraud, but caveat emptor applies, and the representations furnish no ground of action. In Evans v. Collins, 6 it was held that the general rule of law is, that fraud must concur with the false statement in order to give a ground of action. And this, after a series of decisions on both sides of this question, from Chandelor v. Lopus,7 down to the present time, seems to be the established doctrine in England. 8 On the other hand, there is as much conflict on the law relating to this point in this country as in England. While many of the States follow the law as established in England, others take the opposite view, and hold that an action for damages may be sustained for misrepresentation, even when made innocently. Cooley, C. J., in Converse v. Blumrich, in speaking of the statements made by one of the parties, said: "We will not undertake to say that he did not convince himself, by some process of reasoning, that they were correct. But the legal aspect of the case would not be different, if we came

5 14 M. & W. 631.

6 3 Q. B. 820. 72 Croke, 4.

8 Benjamin on Sales, 425; Childers v. Wooier, 2 E. & E. 287; Childers v. Wooler, 29 L. J. Q. B. 129; Wilde v. Gibson, 1 H. L. Cases, 633.

9 14 Mich. 108, citing Ainsley v. Medleycott, 9 Ves. 21: Taylor v. Ashton, 11 M. & W. 401; Smith v. Richards, 13 Pet. 26; Lockridge v. Foster, 4 Scam. 569; Smith v. Babcock, 2 Wood & M. 246; Tuthill v. Babcock, 2 Wood & M. 298.

10

to that conclusion, since the courts must look at the effect of untrue statements upon the person to whom they are made, rather than to the corrupt motives of the one making them. If one obtain the property of another by means of untrue statements, though ignorant of their falsity, he must be held responsible as for a legal fraud." In Allen v. Hart,1 it was held that it was not indispensable to the right to rescind, that the party making the misrepresentations knew them to be false, or that he was ignorant of the fact stated, so long as the matter was material and the other party had a right to rely upon them and was deceived. 10 In Missouri, the court held that the representations of the vendor to the vendee rendered him liable for damages, although he was honestly mistaken in regard to the facts stated.11 However, in this case, one of the grounds of decision was that the party selling land was presumed to know its boundaries, and if he made statements not knowing them to be true, it was just as criminal as to have stated what was known to be false. Kinsey, C. J., in Snyder v. Findley, 12 said: "It is perfectly immaterial, so far as regards the question of law, whether the defendant knew, or did not know, the falsity of the facts which he represented; so far as the morality of the action is concerned, there is unquestionably a vast difference, but there is none in law." And this seems to be the doctrine which has become pretty well established in this country. 13

This would naturally seem to be the most equitable rule, fer surely if any one is to suffer for the innocent misrepresentations of a vendor, justice would declare that all the burden should not fall on him who had nothing to do with the mistake. To give the wrongdoer all the advantage and fruits of his own misrepresentations, is to pay a premium on fraud when it can be perpetrated without discovery, or to place such a risk upon the vendee as to be a serious restraint to com

10 72 Ill. 104.

11 Buford v. Coldwell, 3 Mo. 477.

12 Coxe, 48, 51.

13 Lockridge v. Foster. 4 Seam. 570, 573; Parham v. Randolph, 4 Howard's Miss. 435; Rosevelt v. Fulton, 2 Cow. 139; Miner v. Medbury, 6 Wis. 295; Lewis v. McLemore, 10 Yerg. 206; McKenon v. Taylor, 3 Cranch. 270; Glasscock v. Minor, 11 Mo. 655; Converse v. Blumrich, 14 Mich. 108; Fisher v. Mellen, 103 Mass. 503; Collins v. Dennison, 12 Met. 549; Elliott v. Boaz, 9 Ala. 772; McCormick v. Malin, 5 Blackf. 509.

mercial transactions. It is a well settled rule in law that the contracting party has a right to rely upon the statements of the vendor. 14 And, if this be so, it surely ought to follow as a natural consequence that the vendor should be liable for any statements that may have been made by him as inducement to a contract, and may have wrought an injury upon the vendee.

Perhaps some of the apparent conflicts on this question can be reconciled on the doctrine of implied warranty, the presumed knowledge of the vendor or the exclusive jurisdiction of equity over mistakes, but it would be exceedingly difficult to find any principle that would reconcile some of the extreme cases on the one hand 15 with those that take an opposite view on the other. 16

The question sometimes arises as to the effect of false representations innocently made by an agent, when the facts stated were known to be false by the principal. In Cornfoot v. Fowke, 17 it was held that the false representations by the agent, if made in the belief that they were true, would not support a plea of fraud in an action on the contract, although the facts stated were known to the principal to be false. But in commenting on this case, Lord Campbell, C. J., said: "I am not called on to say whether that case was well decided by the majority of the Exchequer or not, although the voice of Westminster Hall was, I believe, rather in favor of the dissentient chief baron. 18 And the same decision has been seriously questioned at other times, and may be safely said to be overruled. 19

The principal is liable for the fraudulent representations of his agent, although he did

14 Mead v. Bunn, 32 N. Y. 275; McLellan v. Scott, 24 Wis. 81; Hale v. Philbrick, 42 Iowa, 81; Bigelow on Fraud, 67; Matlock v. Todd, 19 Ind. 130; Starkweather v. Benjamin, 32 Mich. 305.

15 Taylor v. Leith, 26 Ohio St. 428; Bird v. Forceman, 62 Ill. 212; Brooks v. Hamilton, 15 Minn. 26; Weed v. Case, 54 Barb. 534; Faribault v. Sater, 13 Minn. 223; Stone v. Denny, 4 Metc. 151.

16 Converse v. Blumrich, 14 Mich. 108; Lewis v. McLemore, 10 Yerg. 206; McKennon v. Taylor, 3 Cranch, 270; Miner v. Medbury, 6 Wis. 295; Smith v. Richards, 13 Pet. 26; Bennet v. Judson, 21 N. Y. 238. 17 6 M. & W. 358.

18 Wheelton v. Hardisty, 8 E. & B. 270.

19 National Exchange Co. of Glasgow v. Drew, 2 Macqueen H. L. Cases, 103; Barwick v. The English Joint Stock Bank, 2 Exch. 259; Wheelton v. Hardisty, 26 L. J. Q. B. 265; Fuller v. Wilson, 3 A & E (N. S.) 58.

not know of, or authorize, his fraudulent conduct 20 And so in Bennett v. Judson, 21 it was held to be proper to set forth in the declaration the fraud of the principal, although he was in no wise connected with the fraud, and did not know that the statements made by his agent were false. If the representations of the agent turn out to be false, though innocently made, and the principal be also innocent of any fraud, then the latter's liability will depend upon the conflicting decisions already referred to. In England, the doctrine laid down in Chandelor v. Lopus will apply.

Sometimes the person making representations is presumed to know whether what he states as true, is true or not, and in such cases he can not be heard to say that he made the representations innocently if they turn out to be false.22 As where a lessor through forgetfullness represented himself as capable of leasing certain premises, when, in fact, he had already leased them.23 Or where one of the partners of a banking company represented that a balance sheet had been correctly prepared, and on the strength of his statement another person bought a share in the bank, he was held to be liable for the loss resulting from his misrepresentations.24 If an executor innocently misrepresent the condition of a legacy to be safe and substantial, and state that it will be paid, and on the strength of the statement a marriage settlement be made, the executor will be liable for the whole amount.25 In Ayre's Case,26 in which a plan of fraudulent representation was set up based on the report given to the public by the directors of a life insurance company, the Master of Rolls said: "Whether the directors personally knew that these statements were delusive and untrue is, in my opinion, wholly immaterial; they are bound to know their falsity; they must be held to have known it; they were the vouchers to the public of the accuracy of their statements."

20 Udell v. Atherton, 7 H. & N. 172; s. C., 7 Jur. (N. S.) 777; 30 L. J. Exch. 337.

21 21 N. Y. 238. See also Locke v. Stearns, 1 Met. 560; White v. Sawyer, 13 Gray, 586.

22 Kerr on Mistake and Fraud, 69; Evans v. Fowler,

21 Beav. 217; Ainslie v. Medlycott, 9 Ves. 21.

28 Slim v. Croucher, 1 D. F. & J. 518.

24 Rawlins v. Wickham, 3 De G. & J. 204.

25 Hutton v. Rossiter, 7 D. M. & G. 9.

26 25 Beav. 527. See also Pulsford v. Richards, 17 Beav. 87.

A man is presumed to know whether statements made in regard to his own trade or business are true or not, and if he, though innocent, misrepresent facts, to the injury of another person, he is as liable as if he had knowingly made the misrepresentations. 27 Detroit, Mich. I. N. PAYNE.

27 Kost v. Bender, 25 Mich. 515; Pickard v. McCormick, 11 Mich. 68; McGar v. Williams, 26 Ala. 467; Eaton v. Winnie, 20 Mich. 156.

RAILROAD — CONSOLIDATED COMPANIES -CLAIMS SOUNDING IN TORT-UNLIQUIDATED DEMANDS.

WHIPPLE v. UNION PACIFIC R. CO.

Supreme Court of Kansas, September, 1882.

In August, 1879, the Kansas Pacific K. Co. owned and operated a line of railway through the city of Lawrence, and while so owning and operating its railroad one of its trains ran over and injured the plaintiff. In January, 1880, the Kansas Pacific R. Co., the Denver Pacific Railroad and Telegraph Co., and the Union Pacific R. Co., entered into an agreement of consolidation, by which agreement they formed, or attempted to form, the Union Pacific R. Co., and to such company, by the articles of consolidation, transferred all their respective properties. The articles of consolidation expressly stipulated that the consolidated company should not be liable for the individual debts of the constituent companies, but that such constituent companies should continue in existence for the purpose of adjusting all claims and demands, and also that the consolidation should not prevent the enforcement of any valid obligation or liability of either constituent company against the properties so transferred by such constituent company. Held, that before the plaintiff could maintain an action against the consolidated company, whether such consolidation articles were valid and such consolidated company a legal corporation, or the articles of consolidation void, and the consolidated company a mere irregular association, he must, by an action against the Kansas Pacific R. Co., the party who did the injuries, convert his unliquidated claim into a liquidated demand, and have both the fact and the amount of the Kansas Pacific company's liability adjudicated.

Error from Douglas County.

Thomas J. Fenlon and Byron Sherry, for plaintiff in error; J. P. Usher, for defendant in error. BREWER, J., delivered the opinion of the court: On June 15, 1880, the plaintiff in error, plaintiff below, commenced his action against the defendant, to recover for personal injuries, The name of the defendant, as stated in the title to the petition, is Union Pacific Ry. Co,, Kansas Division, formerly Kansas Pacific Ry. Co. In the body of the petition it is alleged: "That said Union Pacific Ry. Co., Kansas Division, formerly Kansas Pacific Ry. Co., defendant, is a railway