DAILY CAPTTAI JOURNAL, SALEM. OKEGOX. TrESDAY, MARCH 21. 1011.
V.MiK TWO
the capital journal
E. HOFER, Editor and Proprietor. R. M. HOFER. Manager
Independent Newipapar Devoted to American Principle and
the Proms and Develotaient of AU Oregon
Published Every Evening Except Sunday, Salem, On.
SUBSCRIPTION RATESl
(Inrariatily in Advance)
Dallr, br Carrier, par rear 16.00 Per month-
Caflr. by Mall, per year 4.00 Per month-
Vsekly, by UaO, per year- L00 Six Booth-
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.Ke
. 6V
FULL LEASED WIRE TELEGRAPH REPORT
COMPLAINT THAT WE ARE A LITTLE SLOW.
At the Board of Trade luncheon, given E. P. McCornack upon
his return, that gentleman gaveutterance to some criticisms.
He said, in substance, "How Slow We Are, How Slow We
Are," to the tune of "How Dry I Ani, How Dry I Am."
He deplores the fact that no progress has been made in good
roads legislation since he left for his trip.
He expresses regret that nothing has been done to get public
ownership of water since he left for his trip.
He deplores that while the people put up the money for a li
brary site, nothing has been accomplished in that matter.
But in spite of all this Salem has made some progress, and is
today the most promising city in the interior of the state.
It does a community good at times to jar it hard with a little
cold, frozen truth.
, o .
CREATE A SPECIAL PARK FUND.
The Capital Journal has a suggestion to the gentlemen of the
city council.
The city council seems to be composed mostly of men who are
progressive, and want to see the city go ahead.
Now we all know this city in the future will need some public
parks, and there is even talk of playgrounds for the children.
Now there are a number of special lines of business that could
stand a higher license tax, and that would create a park fund.
The editor of this paper served as alderman for the short
period of one year, and in that time he found one way to get
money.
He got a bill through which made the banks city depositories
and they pay two per cent on daily balances, a nice little income
to the city.
There are many ways to get revenues on these lines, and there
are business men who could create a park fund in this way.
Come, gentlemen, rack your brains a little, that the pipe flow
ing into the cistern is bigger than the one flowing out.
SUPREME COURT PASSES
UPON TREASURE TROVE
AFFIRMS DECISION CITISfl OW.V
ERSHIP OF MOSEY FOUND IX
WAREHOUSE TO PARTS' FIVI).
ING IT AGAINST ALL HUT TIIE
TRUE OWNER.
Itobprunn m Ellin, Columbia County.
R. H. Roberaon, respondent v.
Mike Ellis, appellant. Appeal from
the circuit court for Columbia coun
ty. Hon. J. U. Campbell Judge. Ar
gued and submitted February 24,
1911. Dan. J. Malarky and E. B.
Seabrook, for appellant. W. H.
Powell, for respondent Burnett J.
Affirmed.
In this case the plaintiff alleges
"that on or about the 14th of May,
1907, while the plaintiff was engaged
In removing goods, merchandise and
old rubbish from a certain old ware
house In Rainier, Oregon, he discov
ered and found In said warehouse 22
gold coins of money of the colnngoof
the United States of America of the
value of 10 each, which money had
been lost prior hereto; that the own
er and loser of said money prior to
the date of the finding by plaintiff,
was at said date of finding, at all
times prior thereto and at nil times
since has been unknown to the plain
tiff and all other persona whomso
ever; that the plaintiff was and 1b the
tinder and discoverer of said money,
and he Is now and ever since the date
of finding aforesaid has been the
owner thereof ad such finder and dis
coverer, and entitled to its Immedi
ate posaesshm; that on the same day
of finding of said money aforesaid
the defendant took and received from
plaintiff 21 of said gold coins of
money of the value of $210 upon the
express understanding and agree
ment and not otherwise that defen
dant would keep It for plaintiff until
called for . by him, unless the loser
and original and true owner thereof
should before such cull be found and
claim said money; that the said loser
and ortglnnl or true owner of said
money has never at any time been
found or known by either the plain
tiff or defendant or any other person
or persons whatsoever." He further
lieges In substance a demand upon
the defendant for the return and re
Vayment of the money, the defen
dant's refusal and the defendant's
continued wrongful and unlawful de
tention of the money from the plain
tiff In the sum of $210.
The defendant denies the finding or
loss of the money: denies that the
owner was unknown; that the plain
tiff Is the finder, discoverer or owner
or entitled to the possession of the
money and denies that he agreed to
keep the money for the plaintiff. For
affirmative defense he states that
prior to the alleged finding one Tom
Ellis was the owner and In the actual
possession of the mony In dispute,
"and for the purpose of safekeeping
land preserving the same, deposited
and concealed the same in the ware
house of this defendant at Rainier,
Oregon, to which warehouse no one
other than said Tom Ellis and this
defendant had access. That a short
time prior to May 14, 1907, the said
Tom Ellis departed from Rainier, and
Columbia County, Oregon on a visit
and before doing so appointed and
named this defendant as hla agent
and representative to care for and
have the custody and control of all
his property in Columbia County,
OreRon. That during the absence
from Rainier of said Ellis, this de
fendant desiring to remove from
said warehouse certain goods, wares
and merchandise he had on storage
there, hired and employed the plain
tiff to remove the same gave plnln
tlff access to said warehouse for that
purpose. That during said employ
ment the plaintiff took from its place
of deposit In said warehouse the said
gold coins and delivered 21 thereof
to defendant. That at said time de
fendant did not know who was the
owner thereof, but, as the owner of
the warehouse where said coins had
been deposited and left, defendant
retained the said coins for the benefit
of the owner thereof. That thereaf
ter upon the return of said Tom Ellis
to Rainier, defendant discovered and
learned that, lie, the said Tom Ellis,
was the owner of said coins and de
fendant paid and delivered the same
to said Tom Ellis, who has ever since
retained the same,"
The reply denies the new matter In
the answer. As the result of a Jury
trial there was a verdict and Judg
ment for plaintiff for the full amount
claimed, from which Judgment the
defendant appeals.
Burnett. J.: The first assignment
of error relied upon by the defendant
la based upon the ruling of the court
In admlttiug the testimony of the
plaintiff about a conversation which
he claimed he had with Tom Ellis, In
substance aa follows: After the re
turn of Tom Ellis from a trip away
from home, the witness asked him
If he had ever lost any money, and
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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 bim he bad found some money.
Ellis then asked him how much he
bad found and where. Plaintiff did.
not state the amount, but said he had
found It In the warehouse. Ellis
asked him how much he found; five
or 10 dollars. Plaintiff answered:
"Yes, I found that much all right
enough; and he said 'Twenty dol
lars?' and I said there was $20 all
right enough, and that's all I said,
and turned and walked away."
It Is claimed by the appellant that
because he was not present at that
conversation It was purely hearsay
on that ground was not admlseable
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
ant's warehouse. The defendant thus
assumed to act as the agent or bailee
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,
It 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. Tlfe 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. ThlB objection, however, in
volves 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 well 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- j
lege and prove some property In the j
money. In support of the allegation
that he was the' owner of the coin j
he would he at liberty to prove either ,
a general property or a special prop
erty within the meaning of the rule j
laid down In Relnsteln v. Roberts, 34 j
Or. 87. In that case It was held thnt
under an allegation of general own
ership the plaintiff Was entitled to
show Jhat he had a chattel mortgage j
upon the property in question, the ;
condition of which was broken In j
that the debt for which It was secur- j
Ity was overdue and unpaid. The
rule is also laid down in general j
terms in Weeks v. llackett 19 U R.
A. (NS) 1201, 71 AU. S.-.8, 104 Me.
267. The history of how the plaintiff
came to be the owner of the money
Is evidential only, or a matter of tes-!
tlmony, the allegations concerning j
which might' have been stricken out
as redundant or as pleading evidence.
In this action It cannot concern the
defendant whether the plaintiff
proved a qualified property by means
of the rules relating to treasure trove
or lost property, which the modern
authorities make practically synony
mous, or whether he makes out an
absolute ownership through the dis
covery of abandoned property. If
the property la 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. If It Is really
lost property which has become sep
arated from the' possession of the
true owner without his knowledge or
If It Is treasure trove where money
Is secreted and found by another It
becomes the property of the finder as
against everyone except the true
owner. For the purpose of this case
the result would be the same whether j
the plaintiff proved his allegation ot
ownership by one means or the other.
There are circumstances In the case
from which the Jury would be author
ized to conclude that the property
had been abandoned. The defendant
alleges that he and his brother were
the ony ones who had access to the
warehouse In question and there is
testimony tending to show that both
disclaimed any Interest in the money
in question. There is other testimony
tending to show that many people
stored furniture and household goods
in the warehouse and that roving
steamboat hands and fishermen had
access to It The Jury have conclud
ed that some of these transient peo
ple left the money there designedly
and having gone away to sea or to
some distant part of this or another
country had found it Inconvenient to
return for the money and so had
abandoned It It is possible to aban
don property anywhere, even in a
warehouse, and it Is only when noth
ing else is shown except the place of
finding that attention must be given
to the distinction of Its being found
upon the ground instead of In some
place of deposit. Hence there was
testimony from which the Jury might
have concluded that the property
was abondoned and so to Instruct
upon that question was not error.
It Is also urged by the appellant
that the court below erred In over
ruling his motion for nonsuit at the
close of the plaintiff's case on the
ground that the plaintiff had not
proved a cause sufficient to be sub
mitted to the Jury. The question Is,
then; was there any evidence in the
case which the jury had a right' to
consider? The defendant contends
that the plaintiff was his employe and
that his taking possession of the
money was in law and effect the de
fendant's possession. The allegation
of the answer Is. In substance, that
the plaintiff was employed by the de
fendant to remove from the ware
house certain goods, wares and mer
chandise which the defendant had on
storage there. This was the scope of
the employment of the plaintiff. The
handling of the property of other
people not connected with the defen
dant was not In the line of the plain
tiff's employment and would neither
impose responsibility nor confer
privilege upon the defendant.
The defendant also contends that
the money having been found In the
warehouse of which he was the ten
ant, that fact establishes a qualified
property in the defendant as against
the plaintiff. In support of this con
tention he' cites sundry cases where
customers casually left property In
such places as barber shops, stores
and banks. McAvoy v. Medina 11
Allen 548; State V. McCann, 19 Mo.
249 ; Loucks v. Gallogly 23 N. Y.
Sup. 126; Lawrence v. State, 1
Humph. 227; Kincald v. Eaton, 98
Mass. 139. In this class of cases a
quasi privity of property arises be
tween the proprietor and his custom
ers who attend at his place of busi
ness for the purpose of trade. They
are clearly distinguishable from the
case in hand. There Is some testi
mony In the case tending to show
that both the defendant and his
brother for whom he professes to act
disclaimed any connection with the
money in the first Instance. More
over it was a private place to which
the defendant alleges only he and his
brother had access. These circum
stances are sufficient to take the case
to the jury as against the contention
of the defendant that the money hav
ing been found In his warehouse by
his employe would give the defendant
at ' least a qualified property In, the
money. The case is rather like the
case of Hamaker v. Blanchard, 90 Pa.
St. 377. In that case a chambermaid
found $60 on the parlor floor of the
hotel in which she was employed. On
reporting it to the landlord he said
perhaps the money belonged to a cer
tain guest of the hotel. The maid
thereupon deposited the money with ,
the landlord to be given to the guest I
or returned to her if it was not the
property of the guest It proved to
be not the property of the guest and
the court sustained the maid In her
action to recover the money from the
landlord, holding. In substance, that
the landlord owed no duty to anyone
not his guest and that the place of
finding, although in his hotel, con
ferred no right In his favor as against
the chambermaid respecting property
lost by a stranger. The testimony is
abundant on the question of this
money being treasure trove for, In
the language of Danlelson v. Roberts,
44 Or. 108, "it was money or coin
found hidden or secreted In the earth
or other private place, the owner be
ing unknown." It seems to be the
principle respecting treasure trove,
owing to its peculiar nature of being
coin, that the present property Is in
the finder as against everyone but the
true owner provided that the true
owner is unknown, and It matters not
where or when the same is found, so
that It is secreted in the earth or oth
er private place. This court laid
down this rule In the above case:
"The fact that the money was found
on the premises ot the defendants, or
that the plaintiffs were in their ser
vice at the time, can in no way affect
the plaintiffs' right to possession, or
their duty in reference to the lost
treasure." The defendant seeks to
avoid the effect of that case as ap
plied to the case in hand by the fact
that the coin in question there had
been in the place where found for a
great length of time. This, however,
only affects the weight of the testi
mony concerning the circumstances
of the finding and the condition of
the money when found. There Is tes
timony in this ease that the comb
cases In which the money was found
were mouldy and covered with dust,
Indicating that the money had been
placed where found within no very
recent period. We cannot say as a
matter of law how ancient the depo
sit must be in order to include It
within the rule of Danielson v. Rob
erts or how recent it must be to take
It out of the operation of that deci
sion. It is sufficient to say that there
is evidence on that question which
must be left to the Jury as against
the motion for nonsuit. The case Is
distinguished from Ferguson v. Ray,
44 Or. 557, 77 Pac. 600, 1 U R. A. (N.
s.) 477, 1 A. & E. Ann, Cas. 1, 102
Am. St Rep. 648. That case was con
cerning gold bearing quartz which
had been mined and burled on the
property of the landloard who, when
nothing else was shown was declared
to be entitled to its possession as
against his tenant. The quartz was
not treasure trove, which alone
would serve to distinguish that case
from this.
The rulings and Instructions of the
circuit court were substantially cor
rect. There was evidence In the case
sufficient to go to the jury for its de
cision on the questions of fact involved".
The result is that the Judgment of
the circuit court must be affirmed.
Notice to Contractors.
THE BEST
STRONGEST AND MOST
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It will pay you to rnves
vestigate before placing
your order for Sewer
Connections.
Salem Sewer Pipe Co. I
203 LIBERTY STREET
Sealed proposals will be received
at the office of H. A. Johnson, clerk
of school district No. 24. Salem. Ore
gon, for th erection of an addition
to the Salem high school building,
according to plans and specifications
prepared by P. A. Legg; architect.
Bids to close at 7:30 o'clock p. m..
March 25, 1911, and then publicly
opened. A certified check of 5 per
cent of bids, made payable to the
order of W. P. Babcock, chairman
of the board, must accompany each
bid. Plans and specifications may be
had of the architect.
The board reserves the right to
reject any or all bids.
H. A. JOHNSON, JR.,
3-16-3t-eod Clerk
Children Cry
FOR FLETCHER'S
C ASTO Rl A
Get It at Dr. Stone's Drug Store
FRENCH FEMALE
PILLS.
A S.n, Cvwr.tM Innf fcw Stiililli Hum
rvra ihbwm im till. Bt i su
fc. 11.00 p., b. .'ill wJ iWwa.triKl.la t Pftiit tnr
ban hm nl 'hi rtoc. w tta
UNITtO MKOIC.t CO...OB r. lAeT. to.
Sold in Salt by Or. S. C Stoat
FAIR GROO'D .FEED AND
t GROCERY
5 gal. Kerosene (bring can)
C5c
Extra choice Sugar Cured,
government Inspected Hams, t
per lb 18c X
i Extra large meaty Pick-Nick 1
I Hams i He
J 5 lbs. pure Lard 75c 4
Best Valley Flour, sk....tU5 1
Best Eastern Oregon Blue J
f Stem Flour $1.85
Choice heavy Bacon, lb 17c
f 11 lbs. AVhite Beans 50c 1
t 5 l-lb. pkg. Corn Starch. ,.. 25c
5 cans nice Table Peaches. 50c 4
Garden Seeds 2
t 2 large full sue 3c. pkg 5c
' mrgt) mil size 1UC pKg...UC
I 10-lb. sk. best Eastern Corn-
t meal je
I 2 lbs. best Cream Cheese... J5c
f 3 cans Buttercup Milk 25c
60 lbs. full weight Bran.... "5c 1
I Shorts per sack $1.15
Telephone Orders promptly I
delivered. T
Give me a trial for I can
save you money. 1
R. N. MORRIS
Phnn 1407.
MntMM
ii i ii
W I S I i
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Children Cry for Fletcher's
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TtiA ITlnrl Von Have Alwavs Boucht. and wlilch ,..
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In two for over 30 years, has borne tho signature of
ana una ueen maao unilor his per.
TVTv, Bonal supervision, since its infancy
t-CCCCMiii Allow nn nn tn il.l ,. i .
.. " - j ju ui Ulls.
All Counterfeits, Imitations and " Just-as-good" are but
Experiments that trlflo with and endanger the health of
Infants and Children Experience against Experiment.
What is CASTORIA
Castorla is a harmless substitute for Castor OU, Pare
goric, Drops and Soothing Syrups. It Is Pleasant. It
contains neither Opium, Morphine nor other Nareotio
substance. Its age is Its guarantee. It destroys "Worm
and allays Feverishness. It cures Diarrhoea and "Wind
Colic. It relieves Teething1 Troubles, cures Constipation,
and Flatulency. It assimilates the Food, regulates tha
Stomach and Bowels, giving healthy and natural sleep.
The Children's Panacea The Mother's Friend.
GENUINE CASTORIA ALWAYS
Bears the Signature of
The Kind You Have Always Bought
In Use For Over 30 Years
THI CINTMin COMMNV. TT MURRAY TBtlT. NIW YORK CUT.
Everybody loves a lover, because
lovers usually afford everybody an
excuse for smiling.
TUrt 1- 1 . 1 . .
in uetiri uuiutKeu oy a Key 'i
gold Is usually found empty ,wl?J
opened.
JCST SAI fcVHE'
and we will stop cutting off t
nice tender chops always to be til
at this market. Just the things 1c:
breakfast or even dinner it you in
not care to bother with a roast. Oir
lamb is the real thing. No yearly
mutton, but genuine spring lis',
tender, sweet and Juicy. Try It ul
you'll surely enjoy It.
E. C. CROSS & SON
Phone 1880
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WRIGHT & DICKINSON HOTEL CO.
Owners and Managers
Also Operating Seattle Hotel. Seattle.
HELP
COLUMNS
"Help Wanted" and "Situations
Wanted" are columns of great
usefulness to the masses of the
people. On account of the wide
circulation of the "Journal" its
want ads attract greater atten
tion and bring more results
than its contemporaries.
It will pay you to remember to
place your help ads in the
"Journal".
x