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A. Rights of Finder against Owner.
MULGRAVE v. OGDEN.
(Reported Cro. Eliz. 219.) ACTION sur trover of twenty barrels of butter; and counts that he tam negligenter custodivit that they became of little value. Upon this it was demurred, and held by all the justices, that no action upon the case lieth in this case; for no law compelleth him that finds a thing to keep it safely; as if a man finds a garment, and suffers it to be moth-eaten; or if one find a horse and giveth it no sustenance; but if a man find a thing and useth it, he is answerable, for it is conversion. So if he of purpose misuseth it, as if one finds paper, and puts it into the water, &c.; but for negligent keeping no law punisheth him. Et adjournatur.1
BINSTEAD v. BUCK.
COMMON PLEAS. 1776.
(Reported 2 W. Bl. 1117.) Trover for a pointing dog. The plaintiff proved the dog to be his property, and that it was found at the defendant's house twelve months after it was lost. The defendant said the dog strayed there. casually, and demanded 20s. for twenty weeks' keep, before he would deliver up the dog. A verdict for the plaintiff, subject to the opinion of the court, whether this refusal amounted to a conversion of the dog ? Foster, for the defendant, declined arguing the question, and so
Postea to the plaintiff
1 “If a man findes goods, an action upon the case lieth, for his ill and negligent keeping of them, but no trover and conversion, because this is but a non fesans. Per COKE, C. J., in Isaack v. Clark,” 2 Bulst. 306, 312 (1615).
[Reported 2 H. Bl. 254.] This was an action of trover brought under the following circumstances: A considerable quantity of timber, the property of the plaintitf, was placed in a dock on the banks of the Thames, but the ropes with which it was fastened accidentally getting loose it floated, and was carried by the tide as far as Putney, and there left at low water upon a towing-path within the manor of Wimbledon. Being found in this situation, the bailiff of the manor, one Fairchild, employed the defendant Chapman to remove the timber with his wagon from the towingpath, which it obstructed, to a place of safety at a little distance. This Chapinan accordingly did, and when the plaintiff sent to demand the timber to be restored to him, refused to deliver it up, unless £6 10s. 4d. were paid, which he claimed partly by way of salvage, as a customary right due to the lord of the manor, and partly as a recompense to himself for the trouble of drawing the timber from the water side to the place where it then lay; but this demand the plaintiff refused to comply with, and did not der any other suni. The bailiff acted under the following order, made at a court leet of the lord of the manor in May, 1792: “Coinplaint having been made to this court of the great detriment arising to the tenants, &c., within this manor from timber having been left by the tide upon the towing-path within the same; it is ordered that Francis Fairchild, the bailiff of this manor, do under the authority of this court, remove the same to a proper place of safety until the lord or his steward shall give proper directions for the benefit of the particular owner or proprietor thereof.” But no such customary right as was set up in the lord, was established at the trial; the Lord Chief Justice therefore directed the jury to ascertain what they thought a proper compensation for the carriage of the timber by the defendant as above stated. They answered that two guineas were a reasonable sum for that purpose, upon which it was agreed that a verdict should be found for the plaintiff for the value of the timber, subject to the opinion of the court on the question, Whether there ought not to have been a tender of two guineas before action brought? if the court should be of that opinion, the verdict to be entered for the defendant, he undertaking to deliver up the timber on payment of two guineas; but if they should be of a contrary opinion, then the verdict to be entered for the plaintiff for the value.
Adair and Runnington, Serjts., on part of the plaintiff.
LORD CHIEF JUSTICE EYRE. The only difficulty that remained with any of us, after we had heard this case argued, was upon the question, Whether this transaction could be assimilated to salvage? The taking care of goods left by the tide upon the banks of a navigable river, communicating with the sea, may in a vulgar sense be said to be salvage; but it has none of the qualities of salvage, in respect of which the laws of all civilized nations, the laws of Oleron, and our own laws in particular, have provided that a recompense is due for the saving, and that our law has also provided that this recompense should be a lien upon the goods which have been saved. Goods carried by sea are necessarily and unavoidably exposed to the perils which storms, tempests, and accidents (far beyond the reach of human foresight to prevent), are hourly creating, and against which it too often happens that the greatest diligence and the most strenuous exertions of the mariner cannot protect them. When goods are thus in imminent danger of being lost, it is most frequently at the hazard of the lives of those who save them, that they are saved. Principles of public policy dictate to civilized and commercial countries, not only the propriety, but even the absolute necessity of establishing a liberal recompense for the encouragement of those who engage in so dangerous a service.
Such are the grounds upon which salvage stands; they are recognized by Lord Chief Justice Holt in the case which has been cited from Lord Raymond and Salkeld. Ld. Raym. 393 ; Salk. 654, pl. 2. But see how very unlike this salvage is to the case now under consideration. In a navigable river within the flux and reflux of the tide, but at a great distance from the sea, pieces of timber lie moored together in convenient places ; carelessness, a slight accident, perhaps a mischierous boy, casts off the mooring rope, and the timber floats from the place where it was deposited, till the tide falls, and leaves it again somewhere upon the banks of the river. Such an event as this gives the owner the trouble of employing a man, sometimes for an hour, and sometimes for a day, in looking after it till he finds it, and brings it back again to the place from whence it floated. If it happens to do any damage, the owner must pay for that damage; it will be imputable to him as carelessness, that his timber in floating from its moorings is found damage feasant, if that should happen to be the case. But this is not a case of damage feasance; the timber is found lying upon the banks of the river, and is taken into the possession and under the care of the defendant without any extraordinary exertions, without the least personal risk, and in truth with very little trouble. It is therefore a case of mere finding and taking care of the thing found (I am willing to agree) for the owner. This is a good office, and meritorious, at least in the moral sense of the word, and certainly entitles the party to some reasonable recompense from the bounty, if not from the justice of the owner; and of which, if it were refused, a court of justice would go as far as it could go towards enforcing the payment." So it would if a horse had strayed, and was not taken as an estray by the lord under his manorial rights, but was taken up by some good-natured man and taken care of by him, till at some trouble, and perhaps at some expense, he had found out the owner. So it would be in every other case of finding that can be stated (the claim to the recompense differing in degree, but not in principle) ; which therefore reduces the merits of this case to this short question, Whether every man who finds the property of another which happens to have been lost or mislaid, and voluntarily puts himself to some trouble and expense to preserve the thing and to find out the owner, has a lien upon it for the casual, fluctuating, and uncertain amount of the recompense which he may reasonably deserve? It is enough to say that there is no instance of such a lien having been claimed and allowed; the case of a pointer dog, 2 Black. 1117, was a case in which it was claimed and disallowed, and it was thought too clear a case to bear an argument. Principles of public policy and commercial necessity support the lien in the case of salvage. Not only public policy and commercial necessity do not require that it should be established in this case, but very great inconvenience may be apprehended from it if it were to be established. The owners of this kind of property, and the owners of craft upon the river, which lie in many places moored together in large numbers, would not only have common accidents from the carelessness of their servants to guard against, but also the wilful attempts of ill-designing people to turn their floats and vessels adrift in order that they might be paid for finding them. I mentioned in the course of the cause another great inconvenience, namely, the situation in which an owner, seeking to recover his property in an action of trover, will be placed, if he is at his peril to make a tender of a sufficient recompense before he brings his action ; such an owner must always pay too much, because he has no means of knowing exactly how much be ouglit to pay, and because he must tender enough. I know there are cases in which the owner of property must submit to this inconvenience; but the number of them ought not to be increased; perhaps it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should depend altogether for their reward upon the moral duty of gratitude. But at any rate, it is fitting that he who claims the reward in such case should take upon himself the burthen of proving the nature of the service which he has performed, and the quantum of the recompense which he demands, instead of throwing it upon the owner to estimate it for bim, at the hazard of being nonsuited in an action of trover.
1 It seems probable that in such a case, if any action could be maintained, it would be an action of assumpsit for work and labor, in which the court would imply a special instance and request, as well as a promise. On a quantum meruit, the reasonable ex. tent of the recompense would come properly before a jury. REP.
Judgment for the plaintiff:
1 See Reeder v. Anderson, 4 Dana, 193 ; Preston v. Neale, 12 Gray, 222 ; Chase v. Corcoran, 106 Mass. 286.
WENTWORTH v. DAY.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1841.
(Reported 3 Met. 352.) This action, which was trover for a watch, was submitted to the court on the following statement of facts :
The plaintiff lost the watch mentioned in his declaration, about the middle of October, 1839, in Bradford, in the county of Essex, and put the following advertisement into the “ Essex Banner,” a newspaper published at Haverhill, in said county: “ Twenty dollars reward. Lost, upon the road from Haverhill to Brighton, about two miles from Haverhill Bridge, a gold lever watch. Whoever will return it to this office shall receive the above reward. Francis Wentworth. Oct. 12."
The watch was found, a few days afterwards, by a minor son of the defendant, who delivered it to the defendant, and he took the custody of it for his son, and very soon afterwards left it at the printing office of the “ Banner,” in the care of the printer, with directions to deliver it to the owner, on his paying the twenty dollars reward.
In the month of January, 1810, the plaintiff returned to Haverhill, and on his refusing to pay the twenty dollars, the defendant resumed the possession of the watch, and while it was thus in his possession, the plaintiff demanded it of him, but he refused to deliver it, unless the plaintiff would pay him the twenty dollars for his son. The plaintiff refused to do this, but said he would pay ten dollars. The defendant refused to deliver the watch, and the plaintiff brought this action.
E. Ames, for the plaintiff.
Shaw, C. J. Although the finder of lost property on land has no right of salvage, at common law, yet if the loser of property, in order to stimulate the vigilance and industry of others to find and restore it, will make an express promise of a reward, either to a particular person, or in general terms to any one who will return it to him, and, in consequence of such offer, one does return it to him, it is a valid contract. Until something is done in pursuance of it, it is a mere offer, and may be revoked. But if, before it is retracted, one so far complies with it as to perform the labor for which the reward is stipulated, it is the ordinary case of labor done on request, and becomes a contract to pay the stipulated compensation. It is not a gratuitous service, because something is done which the party was not bound to do, and without such offer might not have done. Symmes v. Frazier, 6 Mass. 344.
But the more material question is, whether, under this offer of reward, the finder of the defendant's watch, or the father, who acted in his behalf and stood in his right, had a lien on the watch, so that he was not bound to deliver it till the reward was paid.