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juries (3). The court said: “One who finds any species of personal property is under no obligation to take care of it. He may pass it by where he finds it, or, if he takes it in his possession and lays it away, and it becomes injured by want of any special care, he is not liable therefor. The same rule applies to a lost animal; but if the finder takes possession of such animal, and shuts him up, he would be bound to provide necessary sustenance for it. And if he goes further and uses such animal in a way that injures him, there can be no doubt that he is bound to make compensation for the injury."
$ 82. Duty to return property to owner. The finder of goods must make reasonable efforts to ascertain the owner and restore his property to him. This duty does not arise unless he chooses to take the goods into his custody. He is also said to be liable if he delivers them to the wrong person as owner, and he may therefore make a reasonable investigation before delivering them on demand of an alleged owner (3a).
SECTION 2. RIGHTS OF FINDER AGAINST OWNER. 8 83. Finder's lien: For expenses.
The owner of property always keeps his title to it, although it is lost and found by another. The question examined here is whether the finder has a lien on the property for his expenses incurred in the rescue and care of it or for a reward therefor.
In an action of trover for a dog, it appeared that the
(3) Murgoo v. Cogswell, 1 E. D. Smith (N. Y.) 359.
(3a) Isaack v. Clark, 2 Bulst. 306, 312; Wood v. Pierson, 45 Mich. 313, 320.
plaintiff's dog was lost and casually strayed to the house of the defendant who took care of it. When the plaintiff demanded his dog, the defendant refused to give it up until he was paid 20s. for twenty weeks' keep. It was held for the plaintiff (4). He had no right to hold the dog for the expense of keeping it. So, where the plaintiff's timber floated away and was left by the action of the tide upon a towing path on the river bank, and the defendant was employed by the bailiff of the manor to remove it from the towing path, which it obstructed, to a place of safety, and, when the plaintiff claimed it, the defendant refused to give it up until paid a recompense, claiming a lien, it was held that the plaintiff might recover in trover. The defendant had no lien. Whether he had any claim that could be enforced by action or not, he certainly had no lien which would throw upon the owner the burden of estimating the value of the service rendered in the rescue and care of the property (5). Th court held that the maritime law of salvage did not apply and, therefore, treated the case as one of mere finding and taking care of the thing found.
8 84. Same: For reward. In Wentworth v. Day, (6) the plaintiff had lost his watch and offered a reward of twenty dollars for its return. The defendant's son found it. The defendant acting for his son, refused to give up the watch until paid the reward. In trover by the owner, it was held for the defendant. There was a contract liability on the part of the plaintiff to pay the reward.
(4) Binstead v. Buck, 2 W. Bl. 1117.
No other time or mode of payment being named in the offer of the reward, it was implied that payment of the reward was to be simultaneous with the return of the property. Under such circumstances the finder has a lien to secure the payment. The lien is given because, under the contract, surrender of the property and payment of the reward are to be simultaneous.
In Wilson v. Guyton (7) the plaintiff had lost his horse and offered a "liberal reward” for its return. A had found the horse and offered to give it up to plaintiff upon payment of three dollars, which sum the plaintiff admitted was reasonable but did not pay. The defendant was holding the horse as agent for the finder. The plaintiff brought replevin and it was held that he could recover. The finder did not have a lien. Here the amount of the reward was not fixed. Neither owner nor finder could properly be made the sole judge. It could not be considered that the owner by his offer of an indefinite reward meant to give the finder the right to hold the property until the amount to be paid was determined, perhaps by litigation. The fact that the owner admitted that three dollars was a reasonable amount made no difference. That, at most, was a subsequent agreement having no effect on the question of the right to a lien, which must exist, if at all, by virtue of an implied term of the contract.
The question whether a finder has any right of action for his services and expenses in finding and caring for lost property in the absence of an offer of reward is one
(7) 8 GIII 213 (Md.).
on which the courts have differed. It is discussed in the article on Quasi-Contracts, $ 37, in Volume II of this work.
SECTION 3. RIGHTS OF FINDER AGAINST THIRD PERSON.
8 85. Finder has right of possession against all but true owner. The plaintiff had found some logs floating in Delaware Bay, which he took up and moored with ropes. The logs were afterwards in the possession of the defendants, who refused to give them up, alleging that they had found them adrift. In trover for the logs, on the trial of the action, the court charged the jury: “The defence consists, not in showing that the defendants are the rightful owners, or claim under the rightful owner, but that the logs were found by them adrift . .. and they insist that their title is as good as that of the plaintiff. But it is a well settled rule of law that the loss of a chattel does not change the right of property; and for the same reason that the original loss of these logs by the rightful owner, did not change his absolute property in them ... So the subsequent loss did not divest the special property of the plaintiff. It follows, therefore, that as the plaintiff has shown a special property in these logs which he never abandoned, and which enabled him to keep them against all the world but the rightful owner, he is entitled to a verdict” (8).
In Armory v. Delamirie (9) it was held that the finder of a jewel could maintain trover against one who con
(8) Clark v. Maloney, 3 Harrington (Del.) 68. (9) 1 Stra. 505.
verted the property from the finder, and that the latter may keep the property against all but the rightful owner.
$ 86. Prior possessor is first entitled. In Durfee v. Jones (10) the plaintiff bought an old safe and soon afterwards instructed his agent to sell it. The latter left it with defendant, at his shop, for sale, authorizing him to keep his books in it until it was sold or reclaimed. There was a large crack in the lining, and the defendant, upon examining the safe, shortly after it was left with him, found secreted between the sheet iron exterior and the wooden lining, a roll of bills. Neither the plaintiff nor the defendant knew the money was there before it was found. The defendant refused to give up the money to the plaintiff when the latter demanded it. The plaintiff brought an action of assumpsit to recover the money or its equivalent. It was held for the defendant; that he was entitled to the money as a finder.
The case presents the most difficult question that arises in connection with the subject of finding; namely, who had priority of possession? Neither the plaintiff nor the defendant was absolutely entitled to the money, for the plaintiff, when he bought the safe, did not buy the money, but, as between the two, he who first acquired possession was entitled to retain it. The question in the case, then, resolves itself into the inquiry whether the plaintiff, knowing nothing of the money, had possession of it when the safe was in his possession. The decision must rest upon the theory that he did not. The court said: “But the plaintiff never had any possession of the money, except,
(10) 11 R. I. 588.