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A lien may be given by express contract, or it may be implied from general custom, from the usage of particular trades, from the course of dealing between the particular parties to the transaction, or from the relations in which they stand, as principal and factor. Green v. Farmer, 4 Bur. 2221. In Kirkman v. Shawcross, 6 T. R. 14, it was held, that where certain dyers gave general notice to their customers, that on all goods received for dyeing, after such notice, they would have a lien for their general balance, a customer dealing with such dyers, after notice of such terms, must be taken to have assented to them, and thereby the goods became charged with such lien, by force of the mutual agreement. But in many cases the law implies a lien, from the presumed intention of the parties, arising from the relation in which they stand. Take the ordinary case of the sale of goods, in a shop or other place, where the parties are strangers to each other. By the contract of sale the property is considered as vesting in the vendee; but the vendor has a lien on the property for the price, and is not bound to deliver it till the price is paid. Nor is the purchaser bound to pay till the goods are delivered. They are acts to be done mutually and simultaneously. This is founded on the legal presumption that it was not the intention of the vendor to part with his goods, till the price should be paid, nor that of the purchaser to part with his money till he should receive the goods. But this presumption may be controlled by evidence proving a different intent, as that the buyer shall have credit, or the seller be paid in something other than money.
In the present case, the duty of the plaintiff to pay the stipulated reward arises from the promise contained in his advertisement. That promise was, that whoever should return bis watch to the printing office should receive twenty dollars. No other time or place of payment was fixed. The natural, if not the necessary implication, is that the acts of performance were to be mutual and simultaneous, — the one to give up the watch, on payment of the reward ; the other to pay the reward, on receiving the watch. Such being, in our judgment, the nature and legal effect of this contract, we are of opinion that the defendant, on being ready to deliver up the watch, had a right to receive the reward, in behalf of himself and his son, and was not bound to surrender the actual possession of it, till the reward was paid ; and therefore a refusal to deliver it, without such payment, was not a conversion.
It was competent for the loser of the watch to propose his own terms. He might have promised to pay the reward at a given time after the watch should have been restored, or in any other manner inconsistent with a lien for the reward on the article restored ; in which case, no such lien would exist. The person restoring the watch would look only to the personal responsibility of the advertiser. It was for the latter to consider whether such an offer would be equally efficacious in bringing back his lost property, as an offer of a reward secured by a pledge of the property itself; or whether, on the contrary, it would not afford to the finder a strong temptation to conceal it. With these motives before him, he made an offer to pay the reward on the restoration of the watch ; and his subsequent attempt to get the watch, without performing his promise, is equally inconsistent with the rules of law and the dictates of justice.
The circumstance, in this case, that the watch was found by the defendant's son, and by him delivered to his father, makes no difference. Had the promise been to pay the finder, and the suit were brought to recover the reward, it would present a different question. Here the son delivered the watch to the father, and authorized the father to receive the reward for him. If the son had a right to detain it, the father had the same right, and his refusal to deliver it to the owner, without payment of the reward, was no conversion.
Judgment for the defendant."
WILSON v. GUYTON.
(Reported 8 Gill, 213.) APPEAL from Harford County Court.
This was an action of replevin, instituted by the appellee, for the recovery of a horse which had strayed from the possession of the plaintiff, and had been taken up by one William H. Pearce, and was retained by the defendant as Pearce's agent. The plea was non cepit.
At the trial, the defendant proved that the plaintiff was the owner of the horse in question, and that having lost said horse in the month of July, 1847, the plaintiff offered a liberal reward, by advertisement, to any one who would take up said horse, and deliver him to the plaintiff ; and that said Pearce, after said advertisement, and in consequence thereof, took up said horse, and offered to deliver him to the plaintiff, upon said plaintiff's paying $3, as the reward for such taking up. He also further proved, that plaintiff admitted that the sum of $3 was a reasonable reward, and within the terms of the advertisement, and that defendant held said horse at the time the writ was issued in this ca se, as the agent of said Pearce. The defendant then prayed the court to direct the jury, “ that unless the plaintiff proved, or offered proof that he had, before the institution of this suit, paid the said $3, the reward aforesaid, or tendered or offered to pay the same, the said plaintiff is not entitled to recover.” Which direction the court (Archer, C. J., and Purviance, A. J.) refused to give, but instructed the jury, that the said William H. Pearce had no right to retain said horse till the said reward was paid. The defendant excepted, and the verdict and judgment being against him, appealed to this court.
1 Cummings v. Gann, 52 Pa. 484, accord.
The cause was argued before DORSEY, C. J., CHAMBERS, SPENCE, MAGRUDER, Martin, and FRICK, JJ.
By Otho Scott, for the appellant, and
DORSEY, C. J., delivered the opinion of this court. The doctrine of lien is more favored now than formerly ; and it is now recognized as a general principle, that wherever the party has, by his labor or skill, &c., improved the value of property placed in his possession, he has a lien upon it until paid. And liens have been implied when, from the nature of the transaction, the owner of the property is assumed as having designed to create them, or when it can be fairly inferred, from circumstances, that it was the understanding of the parties that they should exist. The existence of liens has also been sustained where they contributed to promote public policy and convenience. If any article of personal property has been lost, or strayed away, or escaped from its owner, and he offers a certain reward, payable to him who shall recover and deliver it back to his possession, it is but a just exposition of his offer, that he did not expect that he who had expended his time and money in the pursuit and recovery of the lost or escaped property, would restore it to him, but upon the payment of the proffered reward, and that as security for this, he was to remain in possession of the same until its restoration to its owner, and then the payment of the reward was to be a simultaneous act. It is no forced construction of his act, to say that he designed to be so understood by him who should become entitled to the reward. It is, consequently, a lien created by contract. It is for the interest of property holders so to régard it. It doubles their prospect of a restoration to their property. To strangers it is everything; for few, indeed, would spend their time and money, and incur the risks incident to bailment, but from a belief in the existence of such a lien. Public convenience, sound policy, and all the analogies of the law, lend their aid in support of such a principle. Nor are we without an express authority upon this subject. In Wentworth v. Day, 3 Metcalf, 352, the Supreme Court of Massachusetts decided, " that a finder of lost property, for the restoration of which the owner has offered a reward, has a lien on the property, and may retain possession of it, if, on his offer to restore it, the owner refuses to pay the reward.”
But, in the case before us, there is no ground for the implication of such a lien from the compact of the parties. There was no fixed or certain reward offered by the owner, to be paid on the delivery of his property. His offer was to pay a " liberal reward.” Who was to be the arbiter of the liberality of the offered reward? It cannot be supposed that the owner, by his offer, designed to constitute the recoverer of his property the exclusive judge of the amount to be paid him as a reward. And it is equally unreasonable and unjust, to say that the owner should be such exclusive judge. In the event of a difference between them, upon the subject, the amount to be paid must be ascertained by the judgment of the appropriate judicial tribunal. This would involve the delays incident to litigation, and it would be a gross perversion of the intention of the owner to infer, from his offered reward, an agreement
er, from hof the posseto the
till all the delays of litigation were exhausted. To the bailee thus in possession of property, such a lien would rarely be valuable, except as a means of oppression and extortion; and, therefore, the law will never infer its existence either from the agreement of the parties, or in furtherance of public convenience or policy.
B. Rights of Finder against Third Persons.
ARMORY V. DELAMIRIE.
[Reported 1 Stra. 505.] The plaintiff being a chimney sweeper's boy found a jewel and carried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who under pretence of weighing it, took out the stones, and calling to the master to let him know it came to three halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled.
1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.
2. That the action well lay against the master who gives a credit to his apprentice, and is answerable for his neglect. Jones v. Hart, Salk. 441; Cor. Holt, C. J.; Mead v. Hamond, 1 Stra. 505; Grammar v. Nixon, Ib. 653.
3. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth ; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages; which they accordingly
BRIDGES v. HAWKESWORTH.
QUEEN's Bench. 1851.
(Reported 15 Jur. 1079.] This was an appeal against a decision of the judge of the County Court of Westminster. The following facts appeared upon the case stated and signed by the judge: In October, 1847, the plaintiff, who was town traveller to Messrs. Rae & Co., called at Messrs. Byfield & Hawkeswortli's on business, as he was in the habit of doing, and as he
the floor. He immediately showed it to the shopman, and opened it in his presence, when it was found to consist of a quantity of Bank of England notes, to the amount of £65. The defendant, who was a partner in the firm of By field & Hawkesworth, was then called, and the plaintiff told him he had found the notes, and asked the defendant to keep them until the owner appeared to claim them. The defendant caused advertisements to be inserted in the Times newspaper, to the effect that bank notes had been found, and the owner might have them on giving a proper description and paying the expenses. No person having appeared to claim them, and three years having elapsed since they were found, the plaintiff applied to the defendant to have the notes returned to him, and offered to pay the expenses of the advertisements, and to give an indemnity. The defendant had refused to deliver them up to the plaintiff, and an action had been brought in the County Court of Westminster in consequence of that refusal. The case also found that the plaintiff, at the time he delivered over the notes to the defendant, did not intend to divest himself of any title that he might have to them. The judge had, upon these facts, decided that the defendant was entitled to the custody of the notes as against the plaintiff, and gave judgment in his favor accordingly. It was to review this decision that the present appeal had been brought.
Gruy (Heath with him) for the appellant. The plaintiff, by finding the notes in question, acquired a title to them against the whole world, except the true owner. Armory v. Delamirie, 1 Str. 504; 1 Smith's L. C. 151 (6th ed.) 315. Having found them, he delivered them to the defendant for a special purpose only, and never intended to part with his property therein. The judge appears to have decided the case upon the ground that they were found in the house of another ; but that makes no difference. If they had been found in the highway they would have been the property of the finder, except as against the true owner; and yet the highway is the private property of some one, subject to the right of the public to pass over it. Suppose they had been found in the yard of the defendant, then they could be lawfully retained as against him; he might have had an action of trespass for entering