Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-21
THE N. k. FATRBANK COMPANY
CHICAGO


he said that he had not Witness
then asked him If he had ever put
any money away. He said he had
not, and asked: why" Plaintiff
told him he had found some money.
Ellis then asked him how much he
had found and where. Plaintiff did
not state the amount, but said he had
found 1t in the warehouse. Ellis
asked him how much he found; five
or 10 dollars. Plaintiff answered:
Eyes, | found that much all right
enough; and he said Twenty dol
lars?' and l said there was 500 all
right enough, and that's all l said,
and turned and walked away"
1t is claimed by the appellant that
because he was not present at that
conversation it was purely hearsay
on that ground was not admissible
against him. This contention leaves
out of consideration the defense
pleaded here, which is, in substance,
that the defendant took the money
from the plaintiff and retained it for
the benefit of the owner, all because
the money was found in the defend
ants warehouse. The defendant thus
| IDgqI1Tnn1 tn q nf a. tho hot
of Tom Ellis, whom he claims to
have been the owner of the money
So far as the conversation with Tom
Ellis as detailed by the witness goes,
1t tends to show an admission by
Tom Ellis that he was not the owner
of the money in question. If Tom
Ellis was the principal and the de-
fendant his agent for the purpose Of
holding the money for the account of
Tom Ellis, (Which is the substance of
the affirmative defense) the admis-
sion of the principal would certainly
bind the agent and the doctrine of
hearsay would not apply. Tile only
objection that can be urged against
the admission of this evidence is that
it was properly rebuttal testimony
which should be heard only in case
the defendant entered upon his de-
fense. This objection, however, in
wolves only the order of proof, which
is within the discretion of the court
and in the substance of an abuse of
discretion this court will not disturb
the ruling Of the court below.
The appellant further complains
that the court instructed the jury
about abandoned property as we'll as
about lost property and he contends
that because the complaint alleges
that the money was lost the jury is
precluded from the consideration of
abandoned property. However, it
must be remembered that the gist of
this action is in trover and to recover
damages for the detention of the
money in question in breach of the
contract of bailment between the par
ties, To sustain the action it was
incumbent upon the plaintiff to al
lege and prove some property in the
money. In support of the allegation
that he was the owner of the coin
he would be at liberty to prove either
a general property or a special prop
erty within the meaning of the rule
laid down in Reinstein V. Roberts, "a
Or 81, In that case it was held that
under an allegation of general own
ership the plaintiff was entitled to
show that he had a chattel mortgage
upon the property in question, the
condition of which was broken in
that the debt for which it was secur-
ity was overdue and unpaid The
rule Is also laid down in general
terms in Weeks v. Hackett 10 l.. R.
A. (NSl 1901, II Atl. S5S, 104 Me-
S67 The history of how the plaintiff
came to be the owner of the money
is evidential only, or matter of tes-
timony, the allegations concerning
which might have been stricken out
as redundant or as pleading evidence
In this action it cannot concern the
defendant whether the plaintiff
proved qualified property by means
Of the rules relating to treasure trove
or lost property, which the modern
authorities make practically synony-
nous, or whether he makes out an
absolute ownership through the dis
covery of abandoned property. III
the property is purposely abandoned
by the original owner thereof. it is
restored to the common stock and af-
terwards becomes the property of
the one who first discovers and takes
It into his possession, II it is really
lost property which has become sep
arated from the' possession Of the
true owner without his knowledge or
! II It is treasure trove where money
I 4.