
    Higgins v. Lessig.
    1. Rewards—Coniniets for.—A person having an old harness of the value of ¡;¡i5 stolen, U -oming much excited over the matter, exclaimed: “ I will give ¡1100 to any man who will find out who the thief is, and I will give a lawyer ¡1100 for prosecuting him. It was held, that the language used, under die circumstances, did not show an intention to contract to pay the reward, but was in the nature of an explosion of wrath against the supposed thief, coupled with boasting and bluster about prosecuting him.
    
      2. Rewards—Burden of Proof.—A person claiming a reward for obtaining information concerning the identity of a thief, must show that he was the first to give the desired information, for if he was not the first to gain and impart the information, he can not recover.
    3. Rewards—Information Already Possessed.—In an action to recover the amount of a reward offered for information concerning the identity of a thief, it was competent for the defendant to show that the information given him, and for which the recovery was claimed, was in his possession before, and was not new to him.
    4 Instructions—Rewards for Information Concerning Thief.'—In a suit to recover the amount of a reward for the discovery of a person who stole a harness, it was held error to instruct the jury to find for the plaintiff, if he discovered who stole the harness and informed the defendant, without requiring that he should have been the first person who ascertained the facts leading to the discovery of the thief, or the first who communicated it to the defendant.
    Memorandum.—Action to recover a reward. Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding. Heard in this court at the May term, 1893.
    Opinion filed December 12, 1893.
    The statement ol facts is contained in the opinion of the court.
    J. A. McKenzie, attorney for appellant.
    M. J. Dougiiertt, attorney for appellee.
   Opinion of the Court,

Cartwright, J.

Appellant was the owner of a set of old double harness, worth perhaps $15, which was taken from his premises without his knowledge, and he offered a reward of $100 for the recovery of the harness and the conviction of the thief. A few days afterward a boy named Wilt found part of the harness in appellee’s berry patch, and appellant went with appellee to the place and brought that part of the harness into appellee’s blacksmith shop. Appellant gave the boy who had found the harness a quarter of a dollar, and said he would give him a dollar to find the rest of it. Appellee claims that appellant at that time offered a reward of $100 to the one who would find out who the thief was, and that he earned the reward. ' This suit was brought to' recover the amount so claimed as a reward, and a trial resulted in a verdict and judgment for appellee for $100.

The evidence showed that the defendant was much excited on the occasion, when it is claimed that the offer was made in the shop. Plaintiff’s version of the language used was that defendant said, “ I will give $100 to any man who will find out who the thief is, and I will give a lawyer $100 .for prosecuting him,” using rough language.and epithets concerning the thief. There was evidence of substantial repetitions of the statement, together with the assertion that he would not have a second-class lawyer, either, and that he would not hire a cheap lawyer, but a good lawyer. The harness had been taken by a man called Red John Smith, who had been adjudged insane, and a Mrs. Phillips told the plaintiff that she saw Smith walking by with the harness on his back, on Sunday morning, which was the time when it was taken. Plaintiff watched Smith that night and saw him hiding the collars, and the next day he waited for the return of the defendant from Galesburg, and told Mm that Red John Smith had the harness. A search warrant was procured, and the remainder of the harness was found.

We do not think that the language used was such as, under the circumstances, would show an intention to contract to pay a reward, and think plaintiff had no right to regard it as such. Defendant had previously offered a very liberal reward for the return of the old harness and the cc'iivieiion of ¡¡[o ■ thief. On this occasion, he paid the hoy only c fOiiiriy mim, and offered only $1 for finding the real «.«Mb.. ¡rropsrty. His further language was in the nature of m explosion of wrath against some supposed thief who ¡uní uiolen the harness, and was coupled with boasting an] blunter about the prosecution of the thief. It war mdicivf v<* oí a state of excitement so out of proportion to the l,apposed cause of it, that it should be regarded rather as ds ixka vagant exclamation of an excited man tlian os mai-’h- ' -y :m intention to contract.

lint if 'do that defendant’s language indicated an im .nil • ict i«. pay a reward, the plaintiff, although he obtsii <kiiuiiv knowledge by watching Smith, wii’: nrifhej. , ire-»not the first informer as to the idem lily of tV. iek Tim <y> Meneo was that other persons learned of fm .,lac!t ¿bowed tha.r, Red John Smith had taken the harness, and told I he fMVndant of such facts before the plaintiff did. Charier: Wilt testified that, on Thursday morning, his wife got up about four o’clock and called him, and he saw a man going along with cano. It was dark, and the man had part of o ¡larniíTTt The man was limping, and the witness knew him io bo Sr'dili, Wilt informed defendant the same day and that wad tbc da v that Wilt’s son found part of the harness in the Ivrw ye-h There was evidence that Smith was suspected T oikC»who told defendant of their suspicions, but while tk.y- ru e. not founded on definite knowledge, the infornintion of Charles Wilt was of that character. Defendant rexVikC that Wilt told him on Thursday or Friday who ha-\ die harness, and that Smith had been seen with it. Defendían had gone to Galesburg earlier in the week to see the police about the taking of the harness. After receiving information that Smith had been seen with the harness, he went again to Galesburg on Saturday, before plaintiff told him anything about Smith. Both he and a policeman testified that he informed the policeman that he had found part of the harness, and thought that Bed John Smith had the balance, and that the police should not do anything further about it. This testimony was stricken oft by the court. It was competent for the purpose of showing that defendant had information before the plaintiff gave him any. The court also sustained objections to qiestions as to what Wilt told the defendant about Smith laving the harness. The questions were competent to prove that plaintiff did not first gain or impart informaticu, showing that Smith took the harness, but the fact was proved otherwise, and the ruling did no harm.

The first instruction for plaintiff was erroneous in directing a verdict for plaintiff if he discovered aaT o stole the harness and informed defendant, without requiring that he should have been the first person who found out facts leading to the discovery of the persor. who took the harness, or the first Avho communicated such facts to de “endant. Under this instruction he could recover, although a facts Avere first obtained by others, and the defendáisi- wai first fully informed of them by' others. 'The judgment avííI be reused and the cause remanded.  