
    Fortune Symmes versus John B. Frazier.
    Where one, by public advertisement, offered a reward for a parcel of bank billa which he had lost, it was held, that the finder of a part was entitled to a pro raid proportion of the reward offered.
    This was an action of assumpsit, with divers counts, to recovei the sum of two hundred dollars, or a part thereof, as a .compensation for finding, and causing to be restored, a large sum of money in bank bills, which the defendant had lost from his pocket.
    A trial was had upon the general issue, at the last November term, before Parker, J., from whose report it appears, that the defendant, having lost from his pocket a large number of bank bills, contained in a paper wrapper, amounting to more than fifteen hundred dollars, published an advertisement in the Boston Gazette, in which he described, as nearly as he could, the money lost, and offered a reward of two hundred dollars to any person who should find and restore the same. The plaintiff, having seen this advertisement, and having observed an unusual number of bank bills in the possession of a man whom he * suspected to [ * 345 ] have stolen or found them, gave notice to the defendant, who, in consequence of the information so given, and by the plaintiff’s aid and assistance, recovered more than one thousand dollars of the sum lost, and took the promissory note of the man in whose hands the money was found, for the part which was not restored, except fifty or sixty dollars’ worth of furniture, which he also received from the original finder.
    It was insisted in the defence, that, as the whole sum lost was not recovered, the plaintiff had not brought himself within the terms of the promise, and, therefore, was not entitled to the reward, or any part of it; but that, if he was entitled to any thing, it could only be upon the count for a quantum meruit; and, it appearing in the case that he had received five dollars from the defendant, that he had been sufficiently paid for his time and services; and, therefore, that the verdict ought to be against him even upon that count.
    But the judge ruled, and so instructed the jury, that the fair construction of the advertisement was, that the loser would pay two hundred dollars for the whole sum lost, and a ratable proportion for any part that should be recovered ; and he further stated to the jury, that, upon the count for a quantum meruit, they might consider the advertisement as evidence of the plaintiff’s acknowledgment that the sum of two hundred dollars was a reasonable compensation for finding and restoring the whole, and might adopt it a= a rule for ascertaining the reasonable compensation for the part which was actually restored.
    Upon this direction, a verdict was accordingly returned for the plaintiff. The defendant moved to set aside the verdict for the misdirection of the judge. Upon this motion, the cause stood over to this term, and was now submitted without argument.
   Parker, J.

However reluctant we might feel in supporting a defence so inconsistent with good faith and honorable [ * 346 ] dealing, as that which is set up in this action, we * must, nevertheless, govern ourselves by the rules of law ; and if, by those rules, the plaintiff’s action cannot be maintained, he must fail, however strong his claim in equity and honor.

But, upon deliberation, we are all of opinion that the law is with the plaintiff, and that the legal effect of the advertisement is a promise to pay pro rata according to the sum restored, if part of the whole sum lost should not be regained. Any other construction would be extremely mischievous in its effects, and would, in most cases, tend to convert an honest finder of lost or stolen property into a fraudulent concealer of it. For when an honest man, in low circumstances, encouraged by an advertisement like that in the present case, and having bestowed his time and labor in searching for and restoring lost property, shall find that, by accident, or previous fraud, part of the property has disappeared, and that, by law, his diligence and fidelity are to pass wholly without reward, the temptation to convert the whole to his own use might be too strong to resist; for, in most cases, a detection would be difficult, if not impossible. It is, therefore, for the interest of the loser, and certainly tends to secure the integrity of the finder, that whenever any proportion of the property is found and actually restored, under circumstances which leave no doubt of the faithfulness and integrity of the finder, this latter should have such part of the reward which may have been offered, as will be proportionate to the property so restored.

An offer of a reward might undoubtedly be so expressed, as to exclude any apportionment; for the owner of the property may prescribe his terms for the restoration of it, he having a right to reclaim it, wherever it may be found. But where a compensation is offered in general terms, like those in the present case, (viz., two hundred dollars for the finding and restoring of a lost parcel containing bank bills,) it is consistent with honesty and fair dealing, and with the interest of the loser himself, and not inconsistent [ * 347 ] * with any principle of law, that a proportion of the reward should be recovered, according to the sum actually restored. The direction at the trial was, therefore, right.

As to that part of the direction, that, on the count for a quantum meruit, the jury might consider the sum mentioned in the advertisement as a rule by which to measure the damages, — if it were necessary to determine this, we see no objection to it. What is a reasonable compensation for services rendered, does not depend solely on the time expended, or the actual labor bestowed. The peculiar situation of the property, the risk in saving it, and other circumstances, may be taken into consideration. Were a man in a ship to drop a bag of money overboard, and request another, at the hazard of his life to dive for it, and it should be restored, we do not think a jury would be bound to limit the damages to the value of the time expended in rescuing it. Whatever is reasonable they may give; and it is certainly reasonable that the finder of a moiety of any property lost should receive for his labor and services a moiety of the su n, whic'i the loser himself thought a reasonable compensation for finding the whole.

Per Curiam. Let judgment be entered on the verdict. 
      
       [There certainly was not any express agreement contained in the advertisement to pay any thing, unless all should be found and restored; nor does there seem to be any such agreement implied. — Ed.]
     