Danielson v. Roberts

• Decision Date: 11 January 1904
• Parties: DANIELSON et al. v. ROBERTS et al.
• Court: Oregon Supreme Court

74 P. 913

44 Or. 108

DANIELSON et al. v. ROBERTS et al.

Supreme Court of Oregon

January 11, 1904

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Action by W.O. and C.P. Danielson, and M.J. Danielson as guardian ad litem for the first-named plaintiffs, against W.B. Roberts and others. Plaintiffs were nonsuited, and they appeal. Reversed.

W.E Phipps and John A. Jeffrey, for appellants.

W.I. Vawter and J.R. Neil, for respondents.

BEAN, J.

This is an action of trover to recover for the alleged conversion of money. The plaintiffs aver, in substance, that in March 1894, while engaged at the request of the defendants in cleaning out and removing the loose dirt and débris from an old building situated on premises occupied by the defendants they discovered a tin vessel, rusty, and worn with age, which contained the sum of $7,000 in gold coin of the United States; that the defendants wrongfully took and received the money from the plaintiffs, and have ever since wrongfully and unlawfully detained the same, to their damage in the sum of $7,000; that the building in which the money was found had stood on the premises for more than 40 years, and during that time had been in the possession and control of many owners and tenants; that the dirt and débris which the plaintiffs were engaged in cleaning out and removing at the time the money was discovered had been undisturbed for many years that the vessel which contained the money was so worn and destroyed by time and the elements that it was difficult to ascertain from an inspection of it what kind of a vessel it had been, and plaintiffs could hardly hold it together until it and its contents were taken by the defendants; that the owner of the vessel and the money contained therein "has long since died, and the said vessel and the said sum of $7,000 contained therein were prior to said time lost, and their whereabouts unknown to any person or persons whatever"; that plaintiffs are the discoverers of the money, and are now, and ever since the _____ day of March 1894, have been, the owners thereof, and entitled to its immediate possession; that defendants wrongfully and unlawfully fail, neglect, and refuse to repay the same to the plaintiffs, etc. The answer denies all the material allegations of the complaint, except the discovery by the plaintiffs of the treasure, and that they were working for the defendants at the time, and alleges affirmatively that the money discovered did not exceed the sum of $1,000 and was the property of one of the defendants, who had voluntarily deposited it in the place where discovered for safe-keeping, and at no time had abandoned or lost it. The reply denies the material allegations of the answer. Upon the issues joined the cause came on for trial before a jury. After the plaintiffs' testimony was all in, the defendants moved for and were allowed a nonsuit. The evidence in the bill of exceptions tends to show that in 1894 the plaintiffs, who were then aged about 8 and 10 years, respectively, were employed by the defendants to clean out an old henhouse situated on premises then occupied by defendants, but which had previously been owned by and in the possession of numerous other persons; that while so engaged they dug up an old rust-eaten half-gallon tin can containing a number of musty and partially decayed tobacco sacks filled with gold coin, which they delivered to the defendants. W.O. Danielson, the elder of the two boys, thus describes the finding of the money and its delivery to the defendants: "We hauled several loads from the front end of the building. I was in the back end of the building, spading through the trash, and the point of the shovel struck something hard. I shoveled the trash away, and got the can on my spade, and was going to throw it in the sled. It was too heavy, so I dragged it out toward me a foot or so, and told my brother the can must be full of rocks. So I tried to take the lid off with my fingers. It was rusty and old, and I could not get it off, so I took the pick and chopped through the lid, and when I pulled it out the lid came with it. *** In doing so I cut two of the sacks--tobacco sacks--containing fives and twenties. So we looked through all the sacks, which were gold. *** My brother says, 'Let's take it over home.' I says, 'No, *** let's take it up and show Dee Roberts.' So we packed it up on the spade together. *** We packed it up to the porch steps, and Dee came out and says, 'What you got, boys?' We says, 'A can of gold.' 'Where did you get it?' 'Out in the henhouse.' So Mary Roberts, Dee's wife, and O'Neil came to the door, and said, 'Let's have it,' so we gave it to them. They walked inside and closed the door in our face, and we went back to work to finish up our job. About half an hour after, Dee called us out and says: 'Here's five cents, boys. We put the money there some time ago, and were going to buy something with it. Don't say anything about it, and the Lord will bless you.' We asked him how much was in the can. He said, 'Over seven thousand dollars.' " The witness further testified that the can containing the money was old and rusty, and almost ready to fall to pieces; that it was buried in the earth under the débris and dirt in the henhouse, three or four inches below the surface, and that the ground around it was quite solid, as if it had not been...