Wherefore the judgment is reversed, and cause remanded for judgment in favor of appellant.

Judge Holt not sitting.

FRAUD-INNOCENT MISREPRESENTATIONS.—Whether representations are made innocently or knowingly, they operate equally as a fraud upon a party who relies upon them in ignorance of the facts, provided they are false, and are made as of the party's own knowledge: Bullitt v. Farrar, 42 Minn. 8; 18 Am. St. Rep. 485; Mooney v. Davis, 75 Mich. 188; 13 Am. St. Rep. 425, and note; Converse v. Blumrich, 14 Mich. 109; 90 Am. Dec. 230, and note; Gould v. York County etc. Ins. Co., 47 Me. 403; 74 Am. Dec. 494, and note; Tyson v. Passmore, 2 Pa. St. 122; 44 Am. Dec. 181, and note, with the cases collected; Sears v. Hicklin, 13 Col. 143; Ripley v. Case, 86 Mich. 261; Totten v. Burhans, 91 Mich. 495. The following line of cases hold that representations must be shown to have been made with knowledge of their falsity, before one who acts upon them can recover on the ground of fraud: Pryor v. Foster, 130 N. Y. 171; High v. Berret, 148 Pa. St. 261; Lewark v. Carter, 117 Ind. 206; 10 Am. St. Rep. 40, and note; Smith v; Mariner, 5 Wis. 551; 68 Am. Dec. 73, and note, at page 88; Campbell v. Hillman, 15 B. Mon. 508; 61 Am. Dec. 195, and note; Miller v. Howell, 1 Scam. 499; 32 Am. Dec. 36, and note. See the extended note to Cottrill v. Krum, 18 Am. St. Rep. 555.

FRAUD-KNOWLEDGE ImputeD.-One's title may be postponed without fraud by positive acts for whose consequences he is civilly liable, without regard to his ignorance or knowledge, because a loss which must fall on one of two innocent persons should be borne by him whose act has occasioned it: Robinson v. Justice, 2 Pen. & W. 19; 21 Am. Dec. 407, and note. A person will be presumed to know of the existence or nonexistence of a fact which he undertakes to warrant: Hexter v. Bast, 125 Pa. St. 52; 11 Am. St. Rep. 874; to the same effect see Griswold v. Gebbie, 126 Pa. St. 353; 12 Am. St. Rep. 878, and note.

HOWES V. PERRY.

[92 KENTUCKY, 260.]

OFFICES-REQUISITES OF A VALID ELECTION.-No person can be regarded as duly elected to an office unless he receives a majority of the votes, when there are two candidates, or a plurality of the votes, when there are more than two. OFFICES-DEATH OF ONE Or Two CANDIDATES BEFORE THE CLOSE OF THE POLL, EFFECT OF.-A candidate for an elective office who receives a smaller number of votes than the only other competitor therefor, is not entitled to be declared elected because it appears that the latter died before all the votes were cast. Such a candidate cannot show that he was the choice of a majority or a plurality of those voting at the election, and is therefore incapable of establishing his right to be installed in the office which he claims.

R. T. Burns, for the appellant.

Stewart and Stewart, for the appellee.

261 LEWIS, J. It appears from the petition of appellant, a general demurrer to which was sustained, that on the first Monday in August, 1890, he and S. T. Bayes were opposing candidates for election by the qualified voters of Johnson county to the office of county court clerk; that said Bayes died about 3 o'clock P. M. on the day of election, leaving appellant the only candidate or person to be thereafter voted for; but that, nevertheless, the board of officers empowered and required by law to examine the poll-books and give certificates of election refused to give 263 to appellant such cer tificate; and that afterwards the judge of the Johnson county court wrongfully declared the office of county court clerk vacant and appointed appellee to fill such vacancy.

As to the regularity of appellee's appointment and qualifi cations for the office in question we need not inquire, because to recover, which is the object of this action, it was incumbent upon appellant to show his title to it. He alleges that he received four hundred and ninety-eight votes, but at the same time admits that there were cast and recorded on the pollbooks for S. T. Bayes, the opposing candidate, a greater number of votes than for himself, which fact, in our opinion, is decisive against his right to the office.

It is a principle of free elections by the people, firmly fixed and understood, that no person is or can be regarded duly elected to an office unless, when only two persons are voted for, he receives a majority of the votes cast for them, or receives a plurality in case there are more than two voted for. Any other rule would be subversive of the fundamental idea of elections by the people under our form of government, which is, that only that person shall be entitled to hold an elective office who appears, from the record of votes cast, to have been the choice of a majority or plurality of those voting in such election. There is no means of ascertaining whether S. T. Bayes had, at the time of his death, received more votes than the whole number given to appellant, nor is it necessary to inquire, for it is admitted by appellant he was not the choice of a majority of the qualified voters, whose votes were cast in good faith and recorded in that election, and that is enough to decide the contest against 263 him. And such is the wellsettled rule, nowhere plainer than in section 2, article 5, chapter 33 of the General Statutes, where it is made the duty of the comparing board to give certificates of election to those

who have respectively received the highest number of votes for any office within the gift of the particular county.

As, in our opinion, it is manifest from the statements of appellant's petition, he is not entitled to the office sued for, the demurrer was properly sustained.

The judgment must be affirmed.

ELECTIONS.-DISQUALIFICATION OF THE PERSON Receiving the HIGHEST NUMBER OF VOTES does not entitle the one receiving the next highest number to the office: Commonwealth v. Cluley, 56 Pa. St. 270; 94 Am. Dec. 75, and extended note; Barnum v. Gilpin, 27 Minn. 466; 38 Am. Rep. 304; Sublett v. Bedwell, 47 Miss. 266; 12 Am. Rep. 338, and note; People v. Clute, 50 N. Y. 451; 10 Am. Rep. 508; State v. Giles, 2 Pinn. 166; 1 Chand. 112; 52 Am. Dec. 149, and extended note in which the question as to whether the death of the party receiving the highest number of votes would entitle the candidate receiving the next highest number to the office. See also the extended note to People v. Pease, 84 Am. Dec. 268, where the rule is laid down that a majority of the legal votes must elect.

ABERNATHY v. WHEELER.

[92 KENTUCKY, 320.]

AREHOUSEMEN SELLING GOODS ON COMMISSION, LIABILITY OF.-A mortgagee of goods cannot maintain an action for conversion against a public warehouseman who receives a portion of those goods from the apparent owner, in the usual way and without any notice, either actual a constructive, of an adverse claim, and sells them on commission at a public sale in the regular course of business, without asserting any interest or right hostile to such mortgagee.

Petree and Downer, and D. L Johnson, for the appellants. H. J. Stites, for the appellees.

321 BENNETT, J. C. S. Anderson agreed to do farm-work in Christian county for J. S. Anderson during the year 1888. He was to receive as compensation for his work his board and lodging and one hundred and fifty dollars, and any balance that might be due him at the end of the year on account of his wages; he was to have tobacco enough raised on the farm in 1888 to pay said balance. At the close of said year J. S. Anderson was indebted to C. S. Anderson, on account of said contract, in the sum of one hundred and thirty-five dollars. On the respective dates of July 21 and the 19th of September, 1888, J. S. Anderson executed a mortgage on said crop of tobacco to Wheeler, Mills & Co., tobacco warehousemen in

AM. ST. REP., VOL XXXVL - 88

the city of Hopkinsville, Kentucky, which mortgage was duly recorded, etc.

In 1889, said balance being unpaid, and J. S. Anderson having died, C. S. Anderson caused two hogsheads of said tobacco to be prized and sent in the name of G. S. Anderson to the tobacco warehouse of the appellants, in the city of Hopkinsville, for sale. The appellants, as such warehousemen, sold said tobacco at public sale, and placed the net proceeds of sale in bank to the credit of said sale, and thinking that C. S. Anderson was G. S. Anderson, 322 they gave him a check for the net proceeds of said tobacco. Wheeler, Mills & Co., mortgagees, sued Abernathy and Long and C. S. Anderson, etc., for the price of said tobacco. It is admitted that Abernathy and Long received and sold said tobacco as public tobacco warehousemen, in the usual course of business, and paid the proceeds of sale to C. S. Anderson without actual notice of the existence of appellees' mortgage. Are Abernathy and Long responsible for the sum for which the tobacco was sold? We think not. They were public warehousemen for the purpose of receiving the tobacco of the producer and selling it at public auction in consideration of receiving pay for storage and certain commissions on the sales. They assumed the obligation of serving the entire public in the matter of receiving and selling the tobacco of the producer, and they had no right to select their customers and to refuse others, provided they conformed to the reasonable rules and regulations of the house: See Nash v. Page, 80 Ky. 539; 44 Am. Rep. 490.

It is not contended that the warehousemen had any interest in the tobacco whatever; they were only entitled to a commission for making the sale and to be reimbursed for their other expenses and trouble in receiving and handling the tobacco.

So the question is, Are they responsible to the mortgagees of the tobacco as for a conversion of it? That question seems to be settled in principle in Newcomb-Buchanan Co. v. Baskett, 14 Bush, 658. It is there settled that a public warehouseman receiving, stowing, and selling goods, in his line of duty, on commission, and having no property interest in the goods, and having no notice of an adverse claim to them, is not guilty of a conversion of 823 them by the mere sale of them on account of the person that consigns them to his house for sale. In such case the warehouseman asserts no interest in the goods or right to them hostile to the mortgagee or true owner; he simply acts as the custodian and mouthpiece of the

apparent owner. No one would contend that had C. S. Anderson employed the appellants, as auctioneers, to sell the tobacco at auction on the streets of Hopkinsville, they receiv. ing a compensation for their services only, and having no property right in the tobacco, they would have been liable to the appellees as for a conversion of the tobacco. Why? Because they asserted no right or interest hostile to the appellees, but acted simply as the intermediaries or indifferent parties between the apparent owner of the tobacco and the bidders for it. So here they act as public intermediaries in receiving and selling the tobacco, not having any interest therein, but for compensation merely, and when the tobacco is presented to them for public storage and sale by the apparent owner in the usual way, and they having no knowledge. or information that others had an adverse interest in the tobacco, and there being no fact or circumstance attending the transaction that should put them, as persons of ordinary prudence, upon inquiry as to the rights of others in reference to the tobacco, it would not be in the interest of trade to require them to institute inquiry and investigation before sale as to the true condition of the title of the tobacco.

The judgment is reversed as to Abernathy and Long, and affirmed as to C. S. Anderson.

WAREHOUSEMEN-LIABILITY FOR CONVERSION.-The principle involved in the leading case is analogous to the liability of an auctioneer for the selling of goods delivered to him to be sold by one other than the true owner. The latter proposition is discussed in Robinson v. Bird, 158 Mass. 357; 35 Am. St. Rep. 495, and note. See also the extended note to Velsian v. Lewis, 3 Am. St. Rep. 201.

STANDARD OIL Co. v. TIERNEY.

[92 KENTUCKY, 867.]

NEGLIGENCE-DUTY OF SHIPPER OF DANGEROUS GOODS.-If the shipper of an explosive or dangerous substance fails to notify the carrier or his agent of the danger which attends the handling of it, while in course of transportation, and an injury results to the employees of the carrier, the shipper is liable for the injury thus sustained; but when the carrier is notified whether by a mark upon the parcel or otherwise, that the article shipped is of a dangerous character, and one of the carrier's em ployee's is injured by handling the article, the mere fact that no knowl. edge of its real nature was brought home to the employee will not render the shipper liable. NEGLIGENCE-CARRIAGE OF DANGEROUS ARTICLES-DUTY OF SHIPPER and CARRIER.-Where a dangerous article is delivered to a carrier for trans