Wentworth v. Day

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 cf 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 [355] 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 tne 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. 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 dying, after such notice, they would have a lien for their general balance, a customer dealing with such :vers, 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 ordinal y 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 tc 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. [356] In tlie 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 his 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 cot 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 [357] If the son had a right to detain it, the father had the same light, and his refusal to deliver it to the owner, without payment of the reward, was no conversion. Judgment for the defendant