Ellery v. Cunningham , 42 Mass. 112 ( 1840 )

Shaw, C. J.

The question as to what is the nature of the right of the finder of property lost or derelict, under the various circumstances in which it may be found, at sea or on shore, on the surface of the earth or buried beneath it, is often one of difficulty and nicety. In general, however, it may be said that the finder has a lawful possession, which none but the owner can question, and that possession gives him a special property sufficient to maintain trover against any one but the true owner. McLaughlin v. Waite, 5 Wend. 404.

But the court are of opinion, that none of the questions as to wreck, salvage, and the rights of joint salvors, arise in the present case. The plaintiff found the two bales of cotton floating in Mobile River, and with his brother, with some hired assistants, saved them, put them on board the vessel of which he was mate, and brought them home. As to the claim of the brother, the plaintiff paid him a valuable consideration for his equitable interest, and the brother makes no claim, and the plaintiff relies on an express promise to himself. The defendants were owners of the vessel, and after the cargo was discharged, they promised the plaintiff that they would take the two bales of cotton into their store, and would take measures to discover the owners, and if not discovered, they would account to him for the cotton. To this the plaintiff consented, holding them responsible to account to him, if the owners were not found ; they assuring him that in that event they would be accountable to him for the cotton ; and the two bales were taken by them accordingly. This was a clear and direct promise to account to the plaintiff on condition ; and no owner appearing after the lapse of a reasonable time, we think the defendants are bound by it.

It is urged that it was a promise without consideration ; but we think otherwise: The plaintiff, as finder, had a possession, and a possession v.ery likely to be.of considerable value to him, and a special property. Even as salvor, he had a valuable interest in it. The surrender of this possession was a legal and sufficient consideration for the promise.

It is said that the defendants, as owners of the vessel, were in possession of the property, at least, and had a lien upon it for freight, and that the plaintiff was not in possessioi. We do not so understand the case. The property was shipped on board by the plaintiff. The defendants, no doubt, had a lien for the freight, which could be discharged by payment of the freight, and which, no doubt, the plaintiff would have paid, but for the defendants’ promise. Putting the property into their hands to. sell and account for, superseded the necessity of any other payment of freight, because the sale enabled them to realize their freight, which they charged and deducted from the sale.

The defendants having received the goods from the plaintiff1, and promised to account to him for them, have no right to question the plaintiff’s title. Nor could they set up the title of any other person, unless they could show, that they had been legally obliged to surrender the property, or the proceeds cf it, to some person having a title paramount to that of the plaintiff.

A question has arisen, whether the defendants are chargeable with interest from the time the cotton was sold. We cannot perceive any thing to take the case out of the usual rule, that in the absence of any contract or usage, which may be evidence of contract, a factor is not liable for interest until he is in some default. We think, therefore, that in the present case, where from the nature of the agreement it must have been understood that the property must remain some time to wait for the appearance of an owner, the defendants were in no default until the plaintiff demanded an account and settlement, which was the day before the action was brought, and is the time from which interest on the net sales is to be computed.

Defendants defaulted