Tancil v. Seaton

• Decision Date: 26 April 1877
• Citation: 69 Va. 601
• Parties: TANCIL v. SEATON.
• Court: Virginia Supreme Court

69 Va. 601

TANCIL v. SEATON.

Supreme Court of Appeals of Virginia.

April 26, 1877

1. The finder of a bank note, as against a bailee without reward, to whom he delivers it to be kept for such finder, has such a possessory interest in the note as entitles him to recover the same of the bailee, on his refusal to redeliver it to the finder on request, and in the absence of any claim of the rightful owner made known by him to such bailee.

2. Such bailee is not bound to use as great care and diligence in the keeping of the note as he would be if he were a bailee with compensation; and if the note was stolen from his possession he will not be liable for it, unless the loss was the result of gross negligence on his part.

3. In such a case to entitle the plaintiff to recover, he must show that the note was a genuine note, and of the value claimed.

This was an action of assumpsit in the corporation court of Alexandria, brought by Isaac Tancil against George L Seaton, to recover the amount of a National Bank note for $1,000, deposited by the wife of the plaintiff with the defendant. The facts are stated by Judge Burks in his opinion.

In the progress of the trial, the plaintiff asked for two instructions, which were refused; and the defendant asked for three, which were given; and the plaintiffs excepted. It is unnecessary to state the instructions asked for by the plaintiff; those of the defendant are as follows:

First. If the jury believe from the evidence, that the note of one thousand dollars was a National Bank note, and that Tancil had no other right to it than such as he might have acquired by finding it, and that he delivered it to the defendant for safe keeping, communicating to the defendant the fact that he had so acquired it by finding, that then they must find for the defendant.

Second. If the jury believe from the evidence, that the deposit was made for the accommodation of the plaintiff, and without compensation to the defendant, and that the note was stolen from his possession along with money of his own, without gross negligence on the part of the defendant, they must find for the defendant.

Third. In order to find for the plaintiff, it is necessary, not only for the jury not to find the facts as stated in the foregoing instructions, but must find the further fact that the said note was a genuine note of the value of $1,000.

There was a verdict and judgment for the defendant; and Tancil thereupon applied to this court for a supersedeas: which was allowed.

F L. Smith, Jr., for the appellant.

Claughton, for the appellee.

OPINION

BURKS, J.

On the 10th day of May 1869, the plaintiff's wife handed to the defendant what was claimed to be a thousand dollar National Bank note, she representing that her little son had found it, and offering to pay the defendant one hundred or one hundred and fifty dollars if he would find out whether the note was good. The defendant declining to make any charge, took the note and put it into his iron safe in his store-house for safe-keeping. Within a few days afterwards, according to the statement of the defendant, his store-house was broken into, the safe forced open, and the note, together with several hundred dollars of the plaintiff's own money in the safe was stolen, and never recovered. Suit was brought by the plaintiff in the corporation court of the city of Alexandria to recover the amount of the note from the defendant, and on the trial verdict and judgment were rendered for the defendant, to which judgment a writ of supersedeas was awarded the plaintiff by one of the judges of this court.

At the trial both plaintiff and defendant prayed instructions to the jury. Those asked by the defendant were given, and those asked by the plaintiff were refused, and the plaintiff excepted. The plaintiff also moved the court to set aside the verdict of the jury and grant him a new trial, on the ground that the instructions given were erroneous. The motion was overruled, and the plaintiff again excepted.

It appears from the bills of exceptions that the plaintiff's recovery was resisted mainly on two grounds: First, that the title of the plaintiff, acquired by the finding, which was communicated to the defendant at the time the note was delivered to him, was not sufficient to support the action; second, that the note was stolen from the possession of the defendant without negligence on his part.

If the owner of a personal chattel voluntarily and wholly abandons it, intending not to reclaim it, the first occupant acquires an absolute right to it. If, however, he merely loses it accidentally, he does not part with his title, and the finder becomes a quasi depositary, invested with such possessory interest as will entitle him to hold it against all the world except the rightful owner. This rule of law has never been seriously questioned since the leading case of Armory v. Delamirie, reported in 1 Strange 504 (see 1 Smith's Lead. Cases, part 1, side p. 471, and notes).

It is contended, however, that the rule is limited to the finding of a personal chattel, and has no application to choses in action; and in support of this proposition we are referred to the case of McLauglin v. Waite, 9 Cow. R. 670, affirmed (with much dissension) in 5 Wend. R. 404.

The reasoning of the distinguished chancellor (Walworth ) in the case last named is somewhat subtle and not very satisfactory: but if his conclusion is sound, that negotiable notes, bankers' checks and lottery tickets, payable to the holder, are not within the operation of the rule, still it by no means follows that current bank notes, convertible at par into money, are not subject to the rule. The...