Mulverhill v. Vicksburg Railway, Power & Manufacturing Co. , 88 Miss. 689 ( 1906 )

Alexander, Special J.,

delivered tbe opinion of tbe court.^*

We find no serious conflict in tbe evidence as to tbe terms of tbe contract made with Shaffer by Mulverhill and his associates. In consideration' of the assignment to Shaffer of the franchise' for the street railroad, he agreed to build the road and give to Mulverhill and associates one-fourth interest in the same over and above the cost of construction. It was contemplated by all parties concerned that the franchise should be transferred to the Vicksburg Railway, Power & Manufacturing Company, a corporation chartered to build and operate tbe railroad; that first mortgage bonds should be issued and sold to pay for tbe cost of construction and equipment, and that the interest of the promoters should be tbe value of the railroad properties and franchise over and above sncli cost. Shaffer himself states the terms of the agreement in the following words:

“I agreed with Mordaunt and Smith that if the franchise was turned over to the corporation' — the Vicksburg Railway, Power & Manufacturing Company — without any financial obligations, that I would agree to build the railroad and pay to them and their associates twenty-five per cent of any profits that I might make out of the property, either in cash, bonds or stock.”

And again, in a letter to Mulverhill, he wrote:

“The first mortgage bonds of $200,000 will be sold, and all that money will be put into the plant. Neither Mr. Hughes nor myself are to receive any profits out of the sale of these bonds; nor are we to make any profit out of the construction of the road.”

Mr. Smith, who was one of the associates of Mulverhill, and who, with Mordaunt, personally negotiated the contract with Shaffer, testified as follows:

“We had this understanding: That a certain amount of first mortgage bonds were to be issued, then a certain amount of second mortgage bonds, and a certain amount of capital stock. It was thought by Shaffer that the proceeds of the first mortgage bonds would be sold for the construction of the road and for the electric light plant, possibly some of the second mortgage bonds being necessary, and that the profits from the enterprise would then be whatever was left of the second mortgage bonds and capital stock.”

This is in substantial accord with the testimony of Mulverhill, and is corroborated by the correspondence which passed between the parties.

The capital stock of the corporation was fixed first at $250,000, and later was increased to $300,000. First mortgage bonds amounting to $200,000 and second mortgage bonds amounting to'$100,000 were issued, but none of the stock or bonds were ever disposed of, except $100,000 of stock and $50,000 of first mortgage bonds, which were turned over to Shaffer and Hughes in purchase of the plant and franchises of the Vicksburg Electric Light Company. The theory of Mulverhill, set out in his bill of complaint and earnestly pressed in argument, is that the first mortgage bonds were issued for the purpose of the extension and betterment of the plant, and since they were never sold, all the money advanced by Shaffer and Hughes for the construction and equipment of the railroad, aggregating, it is said, $271,000, must in legal contemplation be treated as paid in on the capital stock; that both the first and second mortgage bonds were, therefore, fictitious and illegal, and complainant and his associate became entitled under the contract to one-fourth interest in the railroad and its franchise, free from the lien of the trust deeds given to secure the bonds and without any prior right in favor of Shaffer and Hughes, growing out of their advances. "We reject this view as unreasonable and at variance with the understanding of all the parties who shared in the promotion of the enterprise. While the services of Mulverhill and his friends in obtaining the franchise, and the franchise when obtained, were unquestionably of greaf value to Shaffer and to the corporation, it can hardly be supposed that any of the parties considered that the mere franchise, for which nothing was paid to the municipalities or the county, was the fair equivalent in value of one-fourth of the total cost of the completed street railroad. Mulverhill admits that the interest of himself and associates was to be one-fourth of the stock and bonds “over and above the cost of construction.” It is quite evident that he contemplated that the cost of construction — that is, all moneys advanced to pay for the building and equipment of the road — whether paid by Shaffer or represented by the bonds, if sold, should be a prior charge upon the railroad and its franchise. This, we think, is the true purport of the contract.

But it is urged by appellees that, conceding the foregoing construction of the contract to be correct, it was a contract with Shaffer as an individual, and imposed no obligation upon the corporation. This position is untenable. It' was well understood at the time that the franchise assigned to Shaffer was being acquired for the benefit of the corporation, which was to own and operate the street railroad. In anticipation of the acquisition of the franchise, the company had already been chartered. The very terms of the agreement in reference to the issuance of stock and bonds could have had reference only to a corporation. Besides all this, the corporation accepted the benefits accruing to it from the contract and availed of the franchise with full knowledge on the part of- all parties concerned in its organization of the maimer and conditions on which it had been obtained. Under such circumstances, it is well settled that the contract is binding on the corporation. 1 Beach on Private Corporations, sec. 198; 2 Clark & Marshall on Private Corporation, 306; Whitney v. Wyman, 101 U. S., 392 (25 L. ed., 1050).

In the next place it is argued that, even if the contract be held binding on the corporation, yet Mulverhill never became a stockholder, and therefore has no standing to question the disposition ultimately made of the railroad and its franchises; that his contract was merely to receive a share of profits, if there should be any, and, as no profits were ever earned, complainant is not entitled to any relief. Counsel on both sides seem to have treated the question whether Mulverhill became a stockholder as a determining one, and have brought to the discussion of it a wealth .of learning and research. We cannot think the inquiry material to the proper disposition of this controversy. In the first place, we do not think any of the individual defendants in this suit are in a position to invoke any strict principles of law governing the issuance and disposition of corporate stock and bonds. They were far too late in manifesting their concern for the technical observance of the law in this respect. The entire scheme was projected and the corporation organized in utter disregard of the prohibition contained in the constitution of this state against the issuance of stock and bonds, except for money, labor done or in good faith agreed to be done, or money or property actually received. No money was ever paid in on the capital stock, and, aside from the value of the franchise procured for the corporation by Mulverhill and associates and the plant and franchise of the Vicksburg Electric Light Company transferred to the corporation by Shaffer and Hughes, nothing of any value was ever' paid in for which stock could legally have been issued. The intelligent promoters of this enterprise could not have been ignorant of this plain, palpable violation of law in reference to the issuance of stock and bonds. Indeed, the attorney who acted throughout as the legal adviser of Shaffer and of the corporation candidly testifies that the expectation was that the first mortgage bonds would be issued to obtain money for building the railroad, and that the capital stock was increased to $300,000 to prevent the indebtedness being in excess of the capital stock. It must bo noted that this is not a case in which a corporation contracted to issue and deliver stock or bonds, or both, to an agreed amount to pay for the construction of a railroad, a transaction not unusual and which, if free from fraud, is unobjectionable. The railroad was not built by Shaffer under any construction contract with the company, and the stock and bonds, except those issued to pay for the electric light plant, were never disposed of by any corporate act. It necessarily follows that, so far as complainant seeks to establish his right to a definite number of shares of the stock so issued, the bill cannot be maintained. There was never any valuation placed upon the franchise assigned to the corporation, nor upon the services rendered by Mulverhill and his associates, and none of them subscribed for any definite number of shares of stock, to be paid for by assignment of the franchise.

In so far as complainant seeks to be declared a stockholder, entitled to a definite number of shares of the stock which has been issued, he misconceives the true nature and extent of the relief to which he is entitled. The right of Mulverhill and associates was clearly not to receive a definite number of shares of stock, but an equitable right to the ownership of one-fourth of the whole railroad when completed and equijiped, together with its franchises, subject, however, to a prior lien in favor of Shaffer and Hughes for the amount advanced in money or property to build and equip the road. The amount at which the capital stock was fixed was wholly immaterial as affecting this right. Had it been fixed at $1,000, or $1,000,000, the relative rights of the parties would have been unchanged. What the party on one side of the agreement was to give, and the parties on the other side were to receive, was one-fourth interest in the entire corporation over and above the cost of construction. While it was expected that this margin of valúe would be evidenced by the capital stock and second mortgage bonds, and that the profits of the enterprise would, at least in part, be realized by the sale of these, yet it cannot be held that, because none of such stock or second mortgage bonds were ever sold or delivered, the parties have no interest in the corporation which a court of equity will protect. Our view of the contract is most favorable to Shaffer and Hughes; for, instead of limiting their liens for advances to the amount of the first mortgage bonds, it gives them, what was clearly contemplated by all the parties, a prior charge for the entire cost of construction, amounting, as is alleged in the bill, to $271,000. As between Shaffer and Hughes on the one side, and Mulverhill and his associates on the other, no bonds or mortgages were needed to evidence or secure the right of the former to be repaid their advances or their lien to secure repayment. ' And as we held that the lien of Shaffer and Hughes is not measured or limited by the amount of the first mortgage bonds, so also we hold that the interest of Mulverhill and his associates was in no way impaired by the failure to issue to them shares of stock. It is well settled that a certificate of stock is not the stock itself. It is a mere symbol. It operates to transfer nothing from the corporation to the shareholder. It merely affords evidence of his right. Oook on Stock and Stockholders, sec. 14. Whatever amount of corporate stock might lawfully have been issued under the plan of organization adopted, certainly Mulverhill and associates were equitably entitled to one-fourth thereof. It would be a narrow and technical view which would deny him the right in equity to have his interest defined and his rights enforced on the sole ground that no shares of stock had ever been issued in his name or delivered to him. 2 Clark & Marshall on Private Corporations, sec. 551.

We pass now to the main question, the validity of the sale of the corporate assets and franchise of the Vicksburg Railway, Power & Manufacturing Company to H. X. Johnson, or to the Vicksburg Railway & Light Company, for the benefit of which he made the purchase. Complainant seeks to have this sale declared illegal upon several grounds: First. It is said that a street railway corporation, being quasi public in its nature, cannot, without legislative sanction or authority conferred in its charter,- sell its entire assets and franchise, and, as this company was chartered under the general law (Code 1892, ch. 112), which gave no such power, the sale was ultra vires. Secondly. It is said that the sale is violative of sec. 5 of ch. 88, p. 127, Laws 1900, defining trusts and combines, and prohibiting a corporation, directly or indirectly, from purchasing or owning the capital stock, plant, or equipments of any other corporation engaged in the same kind of business and being a competitor. Thirdly. It is contended by complainant that a valid sale could not be made, except by unanimous consent of the stockholders, and, as this sale was made without the knowledge or consent of Mulverhill, it will be vacated on his application. In answer to the foregoing, it is said in behalf of defendants that, if the sale were either ultra vires or violative of the statute in relation to trusts and combines, only the state can interpose the objection. It is further argued that, as Mulverhill was not a stockholder, he was not entitled to notice of meetings of stockholders, and cannot complain that he was not notified of the called meeting at which this sale was authorized. And, finally, it is said that the corporation was in a state of hopeless insolvency; that liquidation was inevitable, and that under the general law and-the rule announced by this court in Berry v. Broach, 65 Miss., 453 (4 South. Rep., 117), a majority of the stockholders had the right to sell the entire assets and franchise of the corporation.

On this branch of the case we again find it unnecessary to follow counsel in the discussion of these legal questions. Their decision, in our view, is not necessary-to the proper disposition of this case; for, apart' from these legal questions, the evidence irresistibly impels to the conclusion, that the sale was a fraud upon the rights of Mulverhill. Not only did it operate to hinder, defeat, and defraud him in the assertion of his rights as a party in interest in the corporation, but the evidence discloses a deliberate purpose on the part of the selling corporation, controlled by Shaffer and Hughes, on the one side, and of Johnson and the purchasing corporation represented by him on the other, to so hinder, defeat, and circumvent Mulverhill. It cannot be denied that every person participating in this sale and negotiations leading to it knew that Mulverhill was claiming to be a 'stockholder. They knew all the facts out of which his claim or interest arose. He was throughout treated as a stockholder, and in many places in the minutes of the corporation is listed along with the others as a stockholder. Both Shaffer and Hughes, who personally and through directors named by them, had the sole control of the corporation, in many ways and on many occasions recognized Mulverhill as possessing the rights of a stockholder. Indeed, Hughes, the vice-president of the corporation, had at one time been so solicitous as to avoid the imputation that he would sanction a fraud upon Mulverhill, that he announced at a meeting of the directors and had it entered on the minutes, that he recognized the right of Mulverhill and associates to a one-fourth interest in the stock and bonds. It is true that the interest of Mulverhill in the corporation was slight in comparison with the interest of Shaffer and Hughes. But, aside from the interest of the latter as creditors with a lien to secure their advances, his interest in the corporation differed from the interests of Shaffer and Hughes only in degree, and must be held as sacred and to be as sacredly protected as theirs. The railroad doubtless could not have been built but for the services of Shaffer in procuring the needed funds. Neither could it have been built, nor would it have been built, by Shaffer, but for the services of Mulverhill and his associates in obtaining the franchises and concessions. When we look to the particular relation which Mulverhill sustained, to the enterprise from its inception, the action of Shaffer and Hughes in deliberately ignoring him in the sale seems the more reprehensible. Mulverhill first appears as one of the chief, if not the chief, promoter of the enterprise. It was mainly through his services and influence that the franchise and subsequent concessions were obtained. When the corporation was organized, he was made secretary, and served as such until this sale was consummated. It is not too much to say that he was throughout the most trusted and faithful servant of Shaffer and Hughes, and was their confidential adviser in many matters connected with the management and operation of the railroad. Shaffer’s telegrams promising to build the road solicited the “loyal support” of Mulverhill, and this support was given faithfully and without stint. Shaffer should be no less loyal to Mulverhill. Nothing that was done, either in connection with the fiscal management or local operations of the corporation, seems to have been concealed from him. Not until the negotiations for this sale were in progress was there ever any denial or repudiation by any of the parties concerned of his interest. Whatever may have been the views entertained by the parties as to his legal status as a stockholder, the fact that he had an interest in the corporation, subject only to a lien for the cost of its construction and equipment, and that this interest was of the same kind as of the interest of Shaffer and Hughes, seems never to have been questioned.

The meeting of stockholders held for the purpose of authorizing this sale was secretly held. Not only is it admitted that Mulverhill was designedly kept in ignorance of this meeting, but it is frankly admitted that this was done because it was known that he would oppose the sale and might resort to the courts to enjoin its consummation. After having for several years and in many ways recognized Mulverhill as having an interest in the corporation, or, what is the same thing, in its stock, and after having sought unsuccessfully to buy his claim for $2,000, not, as was stated, because he had any real interest, but to preserve harmony and good will, the parties seem to have decided for themselves that he was not a stockholder — that he held no stock, and therefore might properly be ignored. If bona -fide, ownership of stock, coupled with the possession of certificates duly filled out, had been then thought the test of the right to notice and to vote at the meeting, it is strange that those present at the meeting and voting should have thought themselves in a better attitude than Mulverhill. The whole authorized capital stock, so far as issued at all, had been filled out in blank and put in the possession of Shaffer as president. Neither he nor Hughes, the vice-president, had any certificates in his own name. The other persons present acted confessedly, to borrow the phrase of one of them, as “dummy” directors, appearing and voting as directors and as stockholders by virtue of certificates filled out in their names by Shaffer, and which they had perhaps never seen, and which they did not claim to own. Surely right-thinking men should not expect a court of equity to approve a sale of all the assets and franchises of a corporation, when authorized at a meeting thus secretly called and held and thus doubtfully constituted, wdien there is even a probability that one having a minority interest, and purposely ignored, may show that he has sustained an injury. It is hardly necessary to say that the fact that Mulverhill’s interest is relatively slight.in no way impairs his right to the protection of the court. The rights of minority stockholders as against the wrongful acts'of the majority are frequently the subject of protection in courts of equity. While minorities must yield to the majorities in all matters lawfully committed to the latter, yet their inability to protect themselves against illegal, oppressive, or fraudulent measures adopted by the majority appeals strongly to the courts, which will be jealous in protecting their rights. Especially should transactions of stockholders and directors in control of corporations be closely scrutinized, when, as in this case, they have a personal interest as creditors to be protected, and a conflict between duty and interest may arise. Morawetz on Private 'Corporations, sec. 529; 3 Clark & Marshall on Private Corporations, sec. 628; Cook on Stock and Stockholders, 662; Marsh v. Whitmore, 21 Wall. (U. S.), 178 (22 L. ed., 482); M. & C. R. R. Co. v. Woods, 88 Ala., 642 (7 South. Rep., 108; 7 L. R. A., 605; 16 Ana. St. Rep., 81). See, also, 10 Cyc., 791. This court has condemned as illegal an assignment by a corporation, although authorized by a vote of directors who were indorsers on debts of the corporation being preferred. Love v. Queen City Mfg. Co., 74 Miss., 290 (20 South. Rep., 146).

It was shown beyond question that at and for some time before the sale the company was in financial straits. Its credit was almost, if not wholly, gone, and unsatisfied judgments for large amounts were enrolled against it. According to some of the witnesses, the railroad could not have run many weeks longer, had not the sale taken place. In the sense that its available resources were insufficient to meet the debts due and pressing for payment, the company was insolvent. This fact may furnish an extenuation of the course pursued by the parties, other than Shaffer and Hughes, in making the deal with Johnson; but we do not think that the fact that the company was under a large bonded debt and was without funds to meet current expenses could be invoked by Shaffer and Hughes, who controlled the company, to justify their disposing of the entire corporate assets, including the franchise, in utter disregard of the rights of Mulverhill. In determining the solvency or insolvency of a corporation, especially of a railroad or electric lighting company with a road or plant but recently completed, there are many elements of value which must be considered. A franchise itself is often a most important element of value, especially where the concessions are liberal and carry the rights to the use of the streets of a prosperous and growing city. Such a franchise, although not expressly or in legal contemplation exclusive, is, when once availed of, practically free from all possible competition. Corporations like these do not reach their normal earning capacity for some years after completion. Those who project them must look in large measure to the future for enhancements in value and increase in earnings. Eor this reason the values of shares in such corporations are not necessarily or usually measured by present earning capacity. Again, it has become almost a matter of common knowledge that railroads in this country are not usually built with funds derived from the sale of capital stock, but by the sale of mortgage bonds. The bonds, secured by a mortgage on the entire properties and franchises of the corporation, are in perhaps most instances sold at a discount, and thus upon completion of the railroad the corporation is mortgaged for more than it cost. The order for issuance of the first mortgage bonds in this case authorized their sale at ninety cents on the dollar. It thus appears that it was the contemplation of all parties that the amount of the first mortgage debt alone would exceed the actual amount expended for construction. It is difficult to believe that Shaffer and Hughes believed that this railroad, taken in comiection with its franchises, would on completion' be worth less than it cost. Moreover, it was clearly contemplated that all the money needed to complete the railroad should be furnished or obtained by Shaffer. It was not expected that moneys advanced for completing and equipping the road should be treated as a current debt presently payable, and that the revenues from the operation of the road should be diverted from the payment of operating expenses, fixed charges, and other current expenses, and applied to the construction or extension and equipment of the railroad. Yet from the evidence it is not certain that a large part of the current earnings were not so used. It seems probable that the lack of credit and the financial embarrassments of the corporation arose in part from the existence of the recorded mortgages, amounting to $300,000, to secure the unsold first and second mortgage bonds, and in part from the application of current revenues to pay for construction and. extension of the road. Again, as to the time when the advances by Shaffer and Hughes were to he repaid, it is manifest that it was expected that the cost of construction should be secured by the bonds of the company and that the interest only on such sums would have to be met from the current revenues.

Even if, as contended by appellees, the company was hopelessly embarrassed, it seems unaccountable that Shaffer and Hughes would have denied to Mulverhill, their associate, the right to counsel and cooperate with them as to the best disposition to‘make of the corporation. It seems strange, also, that Johnson was willing to purchase and pay a substantial price for the interest of Mulverhill’s associates, and even more singular is it that they would have bought and paid $1,000 for the claim of McEarland, whose only interest was based on a promise by Mulverhill to allow him a fraction of whatever he might make out of the enterprise. Whatever view Shaffer and Hughes may have entertained as to the insolvency of the company, and however anxious they may have been to sell the railroad, they never offered to take for themselves less than what it had cost them, plus a reasonable interest, and this amount, without discount, was secured to them in the sale by first mortgage bonds of the neiv corporation. On the question of insolvency and of value of the corporation and its franchises, it is significant, also, that Shaffer and Hughes and their attorneys seem to have feared the result of a public sale to the highest bidder under the executions against the company. They must have knoAm that under these executions a sale thoroughly advertised would speedily have developed Avhether the properties and franchises possessed a value in excess of the debts and incumbrances. The fact that at the sheriff’s sale under the executions a bidder was found willing to pay nearly $40,000 for the railroad and franchise, subject to all debts, is persuasive that the railroad, the electric light plant and the franchises, and the good will of the company, were not considered valueless. Johnson himself certainly considered the properties and franchises purchased by him worth more than the indebtedness due by it; for, as the price therefor, he assumed to pay the entire bonded indebtedness, amounting to $300,000, to pay all the floating debts, including the judgments, and also to assume the obligations of Shaffer to Mulver'hill and his associates. The new corporation organized by him 'to take over his purchase issued first mortgage bonds largely in excess of those of the old corporation, and fixed its capital stock at $500,000. This projection of the new corporation did not indicate any shrinkage in values or any retrogression of the enterprise.

Neither Johnson nor the new corporation can avail of any right acquired under the executions on the judgments against the railroad company. lie had already bargained for or purchased both the judgments and the properties sought to be sold under them. The sale was confessedly brought about by him to allow him to buy in the assets of the railroad company and strengthen his title. Without regard to whether the sheriff acted legally or properly in demanding immediate payment of Johnson’s bid, and refusing reasonable time to go to the bank and procure the money to pay the bid, we hold that the sale was part and parcel of the scheme which was intended to circumvent and defeat Mulverhill, and which we have already condemned as fraudulent as to him. ‘Entertaining the foregoing views, we would not hesitate to set aside the sale and order a restitution of the property to the selling corporation, or to a receiver, if we thought that it was now possible to restore the status and afford complainant full and adequate relief by such a course; but, in view of the fact that Johnson and the new corporation have paid debts and judgments existing against the Vicksburg Railway, Power & Manufacturing Company, and are now operating the railroad, and the public interest and convenience might seriously suffer by granting such relief, and since it is quite probable that mortgage bonds of tbe new company have passed into the hands of innocent purchasers, and that this might embarrass and complicate the granting of full relief by a receiver, we think the rights of complainant will be better protected through a personal decree against the two corporations and against Shaffer and Hughes and.Johnson for whatever amount his interest in the corporation may be ascertained to have been worth. As we have seen, the obligation in favor of Mulverhill first made by Shaffer was adopted by Hughes when he became associated with Shaffer, and subsequently by his distinct recognition of the interest of Mulverhill, and this obligation Johnson expressly agreed in his contract of purchase to assume; and as the Vicksburg Railway & Light Company was organized by Johnson to take over his contract, and did in fact do so, it came under a like obligation. Apart from these contracts and assumptions, the power of a court of equity in cases like this to either vacate the sale and afford relief through a receiver, or to render a personal decree against the officers or directors participating in the fraudulent sale, is well settled. 2 Clark & Marshall, Priv. Corp., § § 540, 541.

The decree must be reversed and the cause remanded for an accounting as to the value of the interest of Mulverhill in the corporation — the Vicksburg Railway, Power & Manufacturing Company — at the time of the sale to Johnson, and for a personal decree under the prayer for general relief against Shaffer and Hughes, and the corporation organized by them, and against Johnson and the corporation organized by him, for the value of such interest. In the ascertainment of the worth of the corporation over and above its debts, the court and commissioner should consider not only the value of the railroad and electric light plants and properties in the light of their cost, earning capacity, and probable enhancements of value and earnings, but also the railway and lighting franchises and the good will of the company. In fact, all the circumstances and conditions then existing, tending either to enhance or diminish value, should be considered. In ascertaining the then indebtedness of the company, as affecting such valuation, the amounts advanced in money and property by Shaffer and Hughes for the construction and equipment of the plant should be estimated as if secured by mortgage bonds, and not as a debt, presently demandable. Shaffer and Hughes must not be denied the full benefit of their contract for the sale to the railroad company of their electric light plant and its franchises. No complaint was ever made of any unfairness in the purchase, and Mulverhill knew of and assented to it. As mortgage bonds amounting to $50,000 were turned over to Shaffer and Hughes in part payment therefor, the company will be considered as owing them that amount because of such purchase. But, in addition, they were paid $100,000 in stock of the company — one-third of the total capital. They must, therefore, be held entitled to one-third of what the capital stock represented, viz., the profits of the enterprise. This one-third must, therefore, be first set aside in the calculation, and the amount of the interest which Murverhill and associates were entitled to will be one-fourth of the remaining profits of construction as hereinbefore defined. The interest of complainant in this will then be the fractional share shown in the pleadings and evidence, as to which there seems to be no dispute. The value of complainant’s interest, thus ascertained, with legal interest since the sale, will be the measure of his recovery.

Reversed and remanded.

* Whitfield, C, J., being akin to some of the parties in interest, recused himself, and C. H. Alexander, Esq., a member of the Supreme Court bar, was appointed and presided in his place.