The rule is sensibly expressed by Domat, in the article following, viz.: "1st. He who has found a thing that is lost is bound to preserve it, and to take care of it in order to restore it to its owner. And when he does restore it, he cannot detain any part of it nor demand anything for having found it. But he will recover only what expense he has been at, as shall be explained in the following article. 2d. The person to whom one restores the thing which he had lost, is obliged on his part to repay the money that has been laid out either in keeping the thing or in delivering it to him, as if it was some strayed beast which it was necessary to feed, or that the carriage of the thing from one place to another had obliged the person in whose custody it was to be at some charges; or if any money has been laid out in advertisements or in having the thing cried, in order to give notice to the owner. . . . 3d. The proprietor of a ground on which is thrown the rubbish of a building that has fallen down, or that which a flood has carried away from another's ground, is obliged to suffer him who has had the loss to take away what remains, and to allow him such free access to his grounds as is necessary for that end. But upon the conditions that are explained in the following article. 4th. In the cases of the foregoing article, he who desires to have back the materials of his building that is fallen down, or that which a flood hath carried away from his land and thrown upon another man's ground, is obliged, on his part, not only to indemnify the proprietor of said ground, as to what damage shall happen to be done by taking away the things which have been thrown upon it, but he is moreover bound to repair all the damage which has been already done to the ground by the things since they were cast upon it. But if he choses rather not to take away anything, he will owe nothing; for, if he abandons to the proprietor of that ground all that has been cast upon it, he is not bound to make good a damage that has happened by the bare effect of that accident, and it is enough that he loses what the accident has carried away from him. 5th. If he, whose materials or other things have been thrown by these accidents on the estate of another person, be desirous to take them away, he will be obliged, besides the making reparation for the damage sustained by the owner of the ground, to take away as well the unprofitable stuff that can be of no manner of use as that which is useful and which he is desirous to take away, and to clear entirely the surface of the ground on which the things have been thrown." Domat, vol. 1, pp. 334, 335, part 1, b. 2, tit. 9, § 2, arts. 1, 2, 3, 4, 5. Lond. ed. of 1722.
The logs in question were reclaimed by the authority of the defendants and removed from the premises of the plaintiff. No question is made as to Pond's authority to remove the property, whatever may be said of his authority to promise payment. When the defendants thus removed their property, they became at once responsible for the payment of the damages. If they made no express promise to pay them, the law raises the promise and will sustain an action based upon it. " Where there is a legal right to demand a sum of money and there is no other remedy, the law will imply a promise of payment." Poor v. Guilford, 6 Seld. 276; Newton v. Coon, 3 Denio, 134, 5 Greenleaf R., 519.
The doctrines of Domat are sustained by Amory v. Flyn, 10 • Johns. R. 102, and Rider v. Anderson, 4 Dana, 193. See also Story on Bail. 121, and note 621a. Nicholson v. Chapman, 2 H. Black. R. 254, is not analogous, and furnishes no authority to the contrary. Nor is the case of Beinstead v. Bach, 2 W. Bl. 1117, or of 2 Strange, 278; 1 M. & S. 290, 20 J. R. 28; 10 Id. 249; 4 Wend., 652, to the point. This is not the case of a gratuitous or voluntary service, for which no compensation can be demanded. The use of the plaintiff's land was compulsory. He never consented to the use. He had not the power to resist. Whether the logs remained upon the premises an unreasonable length of time was a question of fact to be decided by the jury, or by the judge acting in their place, if the question became important. 3 B. & C. 213; 4 B. & Ald. 366, 387; 2 B. & B. 692. The finding in favor of the plaintiff determines this question in his favor, upon the well-settled principle that every fact not expressly found shall be deemed to have been found, and held in such manner as to uphold the judgment 36 N. Y. 340; 32 Id. 464; 28 Id. 532; 22 Id. 425, 323; 21 Id. 551.
The recovery was upon general principles of law, without reference to the statute. It is not necessary to invoke it in his behalf, nor are his rights disturbed by its provisions. The judgment Should be affirmed with costs.
II Allen (Mass.), 549. - 1866.
Dewey, J. - It seems to be the settled law that the finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule. 2 Parsons on Con. 97; Bridges v. Hawkesworth, 7 Eng. Law and Eq. R. 424.
But this property is not, under the circumstances, to be treated as lost property in that sense in which a finder has a valid claim to hold the same until called for by the true owner. This property was voluntarily placed upon a table in the defendant's shop by a customer of his who accidentally left the same there and has never called for it. The plaintiff also came there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of the same until the owner should call for it. In the case of Bridges v. Hawkesworth the property, although found in a shop, was found on the floor of the same, and had not been placed there voluntarily by the owner, and the court held that the finder was entitled to the possession of the same, except as to the owner. But the present case more resembles that of Lawrence v. The State, 1 Humph. (Tenn.) 228, and is indeed very similar in its facts. The court there take a distinction between the case of property thus placed by the owner and neglected to be removed, and property lost. It was there held that " to place a pocket-book upon a table and to forget to take it away is not to lose it, in the sense in which the authorities referred to speak of lost property."