An employee who finds property in the course of his employment does not find by virtue thereof, and the property found does not belong to the employer. (Bowen v.Sullivan, 62 Ind. 281;Hamaker v. Blanchard, 90 Pa. St. 377;Durfee v. Jones, 11 R.I. 588;New York etc. R.R. Co. v. Haws, 56 N.Y. 175; Bailey v. State, 52 Ind. 462;Hillsboro Nat. Bankv. Hyde, 7 N.D. 400; Bridge v. Hawksworth, 7 Eng. Law. Eq. 424; Tatum v. Sharpless, 6 Phila. 18.
Cf. also Miller v. Race, 1 Burrows, 452. When, as in the cases above mentioned, the owner of the place wherein a lost chattel is found is not in the relation of employer to the finder, or where the parties are at arm's length as in the case of the buyer of an old safe who found money therein not known of by either party to the sale, Durfee v. Jones, 11 R.I. 588, 23 Am. Rep. 528, there is little difficulty in acquiescing in the principle just discussed. But the doctrine of the finder's status is so strictly enforced that, even when an employee finds a lost chattel on his employer's premises, he is held entitled thereto as against his employer if the latter be not the true owner thereof.
The court said, in part: "* * * The fact that the money was found on the premises of the defendants, or that the plaintiffs were in their service at the time, can in no way affect the plaintiffs' right to possession, or their duty in reference to the lost treasure: Hamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Tatum v. Sharpless, 6 Phila. 18; Durfee v. Jones, 11 R.I. 588, 23 Am. Rep. 528; Bridges v. Hawkesworth, 21 L.J.Q.B. 75. * * *" It is to be observed that not a single one of the cases cited by the court sustained the court's view that plaintiffs' claim was not defeated by the facts that the money was concealed in a private place upon premises in the occupation of defendants and was found there by plaintiffs while working upon the premises as defendants' employees.
Maryland is not alone in following Armory. Our sister states that have considered the issue also follow Armory. See e.g. Tatum v. Sharpless, 6 Philadelphia Reports 18 (1865); Sovern v. Yoran, 16 Or. 269, 20 P. 100 (1888); Favorite v. Miller, 176 Conn. 310, 407 A.2d 974 (1978); Bowen v. Sullivan, 62 Ind. 281, 30 Am.Rep. 172 (1878); Durfee v. Jones, 11 R.I. 588, 23 Am.Rep. 528 (1877); Deaderick v. Oulds, 86 Tenn. 14, 5 S.W. 487 (1887). See also Preston Coal Improv. Co. v. Raven Run Coal Co., 200 F. 465, 468 (3rd Cir. 1912); 1 Am.Jur.2d, Abandoned, Lost Unclaimed Property, § 19; R. Brown, The Law of Personal Property (Raerschenbush, 3rd Ed. 1975), § 3.1.
The other case concerning a safe is not strictly on point, as its rationale was based upon a finder's theory rather than upon a no-contract theory, and the true owner of the money found hidden inside was unknown. See Durfee v. Jones, 11 R.I. 588, 23 Am. Rep. 528 (1877). In ruling that the defendant finder was entitled to keep the money, the court also said:
A sale must rest on mutual assent of the parties as to all its terms, including the identity of the thing sold. Where there is no consensus ad idem there can be no sale. So it is generally held that valuables secreted by a decedent in articles of personal property do not pass by the personal representative's sale of such articles, but upon discovery are held by the purchaser as the property of the decedent's estate. Huthmacher v. Harris, 38 Pa. 491, 80 Am. Dec. 502; Evans v. Barnett, 6 Pennewill, Del., 44, 63 A. 770; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Durfee v. Jones, 11 R.I. 588, 23 Am. Rep. 528; Livermore v. White, 74 Me. 452, 43 Am. Rep. 600; 46 Am. Jur., Sales, sec. 147, p. 325; Benjamin on Sales, 6th Ed., 78; 1 Mechem on Sales, sec. 273, p. 256. To take the case out of this general rule, appellant relies on what she testified the auctioneer announced as the terms on which the sales would be made.
; and in point of fact the evidence was, that defendants did not enter upon the land for any such purpose, but to establish a mill-site, which was permissible only on non-mineral land (U.S. Rev. Stats., sec. 2337 (U.S. Comp. Stats. [1901], p. 1436); Lindley on Mines, secs. 519 et seq.): that defendants did not acquire any title to the gold by virtue of plaintiff's employment under the provisions of section 1985 of the Civil Code, because defendants were engaged in excavation, not for minerals, but for the purpose of removing and throwing away the matter excavated, and the gold found by plaintiff was property without owner or intending owner, and therefore subject to his right of appropriation by occupancy, and the case comes within the same principle as that in Bowen v. Sullivan, 62 Ind. 281, [30 Am. Rep. 172, and note], where the property was found by the employee in the course of her employment; and in the similar cases of Hamaker v. Blanchard, 90 Pa. St. 377, [35 Am. Rep. 664], and Durfee v. Jones, 11 R.I. 588, [23 Am. Rep. 528]. In the course of the opinion, however, it was said: "Had the object, or one of the objects, of the excavation been to obtain the gold, any gold found by an employee would doubtless belong to his employers."
The case is most peculiar in its circumstances, and differs from any of the cases cited by counsel, but the general principles to be applied are stated in the cases cited in 7 Am. & Eng. Enc. Law, p. 977, and notes. In Durfee v. Jones, 11 R. I. 588, the bailee for sale of a safe, while examining it, found a sum of lost money inside the casing, and was held entitled to retain it against the owner of the safe, because the owner never had any conscious possession of the money. All of the cases agree that some intention or state of mind with reference to the lost property is an essential element to constitute a legal "finder" of such property, and the peculiarity of the present case is that the intention or state of mind necessary to constitute the finder must relate to the lost money inclosed within a lost stocking, and not to the lost stocking itself, in the condition when first found; and, under the circumstances established by the evidence in this case, the finder of the lost stocking was not, by reason of such finding, the legal finder of the lost money within the stocking.