Opinion
01-11-1896
KERON v. CASHMAN et al.
Fred C. Marsh, for complainant. Walter L. Hetfield, for defendants.
Bill of interpleader by John Keron against William Cashman and others. Decree advised.
Fred C. Marsh, for complainant.
Walter L. Hetfield, for defendants.
EMERY, V. C. The bill in this case is filed by the stakeholder or custodian of lost money, and the sum in his hands, amounting to nearly $800, has been paid into court, to abide the decision of the controversy between the defendants as to their respective rights in the fund. The money was found under the following circumstances: A party of boys, five in unmber, were going on their way home along a railroad track in the city of Elizabeth. The youngest boy, Crawford, about nine years of age, being ahead of the others on the railroad embankment, picked up an old stocking, tied at both ends, and in which something was tied up. Crawford says that, after picking up the stocking, he began swinging it, and that Cashman, the oldest of the boys, snatched it away from him. Cashman and the other three boys swear that Crawford threw the stocking down the embankment, and that then Cashman got it, and commenced beating the boys with it. The stocking passed from one boy to another in this play, and finally it broke open while Cashman was beating another boy with it, and it was then first found or suspected that the stocking contained money. All of the boys then examined the contents of the stocking together. The stocking contained $775 in bills, besides some rags, cloths, ribbons, etc. A division of the money among the boys was proposed, and partially carried out; but, being interrupted, the boys went home, and all of the money was on that evening given to the father of two of the boys, named Fox, who, on the next day, put it into the possession of the complainant, the chief of police of Elizabeth, to discover the owner. This effort, though made with all diligence, has failed; and Crawford having demanded the whole sum, while the other boys demanded an equal division of the money, it has been paid into court on this bill of interpleader, upon which decree of interpleader has been made. The several claims are set up by the answers to the bill, Crawford claiming all, and the other boys claiming an equal division.
Upon consideration of the evidence in this case, I reach the conclusion that the lost money which is the subject of the present controversy must be treated as legally found while in the common possession of all the defendants. This common possession arises from the fact that the old stocking which contained the money and other articles was, at the time the stocking burst open, in actual use by all the defendants as a plaything, and for the purpose of play only. The stocking itself, in the condition in which it was found, was not, in my view of the evidence, treated either by the boy who first picked it up or by any of the others as an article over which any ownership or possession was intended to be asserted for the purpose of examining or appropriating its contents. The evidence is conflicting as to whether the boy who first picked up the stocking threw it away again, or whether it was snatched from him by one of the older boys. The weight of evidence is that it was thrown away by him, and was then picked up again by Cashman. There is no sufficient evidence to establish that Crawford retained or desired to retain the stocking for the purpose of examining, or that it was taken from him for that purpose by the older, Cashman. When Cashman first got the stocking, whether by picking it up or by snatching, he did not proceed to examine it, but commenced the play with it; and the only intention or state of mind in any of the boys in relation to the stocking and its contents, as found, established by the evidence, in my view, is that the stocking was treated by all of them only as a plaything, to be used as such, in the condition it was when found. In the course of the play with it, after it had passed from one hand to another, and while one boy was beating another with it, the stocking burst open, and it was then disclosed to all of the boys that the stocking contained money. This money within the stocking was therefore the lost property, and as to this money the first intention, idea, or "state of mind," as it is called in some of the authorities, arose on this discovery. As a plaything, the stocking with its contents was in the common possession of all the boys; and inasmuch as the discovery of the money resulted from the use of the stocking as a plaything, and in the course of the play, the money must be considered as being found by all of them in common. Had the stocking been like a pocketbook, an article generally used for containing money, or had the evidence established that Crawford, the boy who first picked up the stocking, retained it, or tried to retain it for the purpose of examining its contents, or that it had been snatched from him by Cashman, another boy, for the purpose of opening or appropriating the contents himself, and preventing Crawford's examining, I think the original possession or retention of the stocking by Crawford, its original finder, for such purpose of examination, might perhaps be considered as the legal "finding" of the money inclosed, with other articles, in the stocking. But, inasmuch as none of the boys treated the stocking when it was found as anything but a plaything or abandoned article, I am of the opinion that the money within the stocking must be treated as lost property, which was not "found," in a legal sense, until the stocking was broken open during the play. Atthat time, and when so found, it was in the possession of all, and all the boys are therefore equally finders of the money, and it must be equally divided between them. 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. A decree will therefore be advised dividing the money equally between the defendants.