
    Kinn and another, Appellants, vs. First National Bank of Mineral Point and others, Respondents.
    
      May 29
    
    July 3, 1903.
    
    
      Rewaris: “Arrest and conviction”: Rights of claimants: Police officers: Rights to recover reward: Costs: Findings: Appeal and error.
    
    1. A reward is a recompense or premium offered by the government or an individual in return for special or extraordinary services to be performed, and may be made in writing or orally, either to a particular person or class of persons, or to any and all persons complying with its terms.
    .2. An offer of a reward for the “arrest and conviction” of an unknown perpetrator of a crime cannot be taken literally, but the conditions thereof are substantially performed by a person who obtains possession of the facts necessary to secure the arrest and conviction, and gives them to some proper person interested, although he does not himself make the arrest, but this and the prosecution are made by the proper officers.
    3. Police and other officers may recover a reward offered when the information furnished or the service performed was extra official, but cannot recover the reward offered if the information furnished or the service performed was within the scope of the duties of such officer.
    4. A reward for the arrest and conviction of the person who committed a bank robbery having been offered, O., a chief of police, on information furnished by his co-plaintiff, made an arrest, without warrant, within the city limits. Thereupon defendant T., as deputy sheriff, took the prisoner in charge upon a warrant for his arrest, and, after several days’ confinement, followed by a confession and plea of guilty, the prisoner was convicted and sentenced. Ch. 272, Laws of 1901, prescribes the duties of such chief of police as follows: “He shall possess the powers, enjoy the privileges and be subject to the liabilities conferred and imposed by law upon constables, and be taken as included in all writs and papers addressed to constables. It shall be his duty ... to arrest, with or without process . . . every person found in the city in a state of intoxication or engaged in any disturbance of the peace, or violating any law of the state or ordinance of such city.” Held, that such statute imposed no duty -on the chief of police to make such arrest without process, and the mere fact that 0. was at the time such officer did not preclude him from the reward or any portion thereof.
    5. Under sec. 2789, Stats. 1898 (providing that the defendant in any action may serve on plaintiff an offer of judgment “with costs,” and plaintiff, if he refuse, must pay defendant’s costs, “from the time of the offer”), where a bank had offered a reward for the arrest and conviction of the person who robbed it, and, on being sued by one claimant, paid the amount of the reward into court and procured the other claimants to be in-terpleaded, the whole of such reward so deposited in court must he deemed to be the property of the claimants who may ultimately recover, and it is error to adjudge costs in favor-of the bank, payable out of the fund in court.
    6. Under sec. 2863, Stats. 1898 (providing that in trials of questions of fact by the court the judge shall state separately in his decision the facts found by him and his conclusions of law thereon), there is nothing to support a judgment, where the judge makes no findings of fact on issues presented, and the evidence fails to disclose with reasonable certainty the rights-of the respective parties.
    Appeal from a judgment of the circuit court for Iowa-county: Geo. CleMENtsoN, Circuit Judge.
    
      Reversed.
    
    It appears and is undisputed that on the night of Flay 24, 1901, the First National Banlc of Mineral Point was burglarized, and about $25,000 stolen therefrom; that May 25, 1901, the bank publicly and orally offered a reward of $1,000’ for the “arrest and conviction” of the culprit, or, as admitted by the bank, “for the arrest and securing the conviction of" the person who committed the burglary;” that about that time suspicion fell upon one Stewart Jelleff, alias H. C. Winter, who had disappeared; that May 27 or 28, 1901,. Jelleff was arrested and taken into custody and lodged in-jail, and thereupon made confession, and on July 10, 1901, pleaded guilty in the circuit court, and on that day was convicted and adjudged guilty of the crime, and sentenced to the-State Reformatory at Green Bay. July 15, 1901, the plaintiffs commenced this action against the bank, and in their-complaint alleged, in effect, that in pursuance of the offer they made search for Jelleff, and found him, and made the-arrest without warrant or process, and that they bad performed ' all tbe conditions of tbe offer and claimed tbe reward. Tbe bank answered, admitting tbe burglary, tbe suspicion of Jelleff, and bis disappearance, and that it bad “offered publicly a reward of one thousand dollars for the arrest and securing tbe conviction of tbe person who bad committed said burglary”; that tbe plaintiff Ovitz bad taken Jelleff into custody without warrant or process; that Jelleff pleaded guilty, and was sentenced to a term in tbe State Reformatory at Green Bay; and tbe answer alleges, in effect, that tbe ' plaintiffs claim such reward; that William, B. Dawe, Charles H. Terrell, Mark A. Sbepley, and Alfred Richards, without any collusion between either of them and tbe bank, each made tbe same claim, and each demanded and claimed tbe $1,000; that they, or some of them, did acts and gave information in connection with tbe arrest and securing tbe conviction of Jel-leff which might entitle them to tbe reward, or some portion, thereof; that tbe bank was unable to determine tbe rights of tbe respective persons claiming tbe reward, and thereby offered to pay tbe $1,000 into court, to be paid to whomsoever should be found entitled thereto; and that a complete determination of the controversy could not be bad without the presence of each of tbe persons named as parties, and prayed for an order making them parties accordingly. Such order was made September 30, 1901, reciting that tbe bank bad deposited $1,000 in court, and therein required that tbe summons and complaint be amended accordingly, and served m each of tbe persons named: Shepley disclaimed any right t® tbe reward in open court, and requested that be should not be made a party, and be was not. Tbe defendants Dawe, Terrell, and Richards each answered separately. Dawe demanded tbe reward by reason of having found some evidence which be claims would have been important bad the burglar pleaded not guilty and stood trial, and which he claims had an influence in causing tbe burglar to plead guilty. Terrell 
      demanded tbe reward by reason of having secured evidence which he claims would have been important had the burglar pleaded not guilty. Richards demanded the reward by reason of having given to the plaintiff Ovitz information which he claims led to the arrest of the burglar. At the close of the trial the court made findings, which, in addition to the admitted facts mentioned, consist mostly in a recitation of evidence in detail. Among other things, it is, in effect, found, as a matter of fact: (5) That many persons made search for evidence regarding the burglary, and for the money that had been stolen, and pieces of evidence having some tendency to show that Jelleff was the burglar were discovered by persons .making no claim tó the reward. (6 — 11) That during the evening of May 27, 1901, the defendant Richards drove out through docking’s Grove — just beyond the city limits — and there discovered Jelleff, and returned to the city, and informed the plaintiff Ovitz, the city marshal, who, with the plaintiff Kinn, drove out, and found Jelleff, and arrested him, without warrant or process, and lodged him in jail. (12) The findings then state in detail the numerous facts upon which the defendant Datve claims the reward, and (13) the same with respect to the defendant Terrell. (14) The court then finds, in effect, that Jelleff was arrested by Ovitz without a warrant, within the city limits, May 28, 1901; that Terrell, as deputy sheriff, then took him in charge upon a warrant for his arrest, and kept him for a number of days in a cell in the city hall, and for his services as deputy sheriff he filed a claim against the county, which was allowed and paid. (15) That Jelleff finally confessed, pleaded guilty, and was convicted and sentenced as stated. (16) That the other allegations of the complaint are not sustained by the evidence. (17) That all the issues of fact raised by the pleadings in this action are hereby found and decided in favor of the defendants Richards and Dawe and against all the other parties to this action. As conclusions of law tbe court found, in effect: (1) That tbe plaintiffs Kinn and Ovitz and tbe defendant Terrell made claim to tbe reward in good faith, and upon probable grounds, and tbe costs in tbis action should not be imposed upon them; (2) that tbe taxable costs of tbe defendant bank, and also tbe taxable costs of tbe defendants Richards and Dawe, should be paid out of tbe fund in court; (3) that tbe remainder of said fund should be divided equally between tbe defendants Richards and Dawe; and tbe court ordered judgment to be entered accordingly. From tbe judgment so entered, tbe plaintiffs bring this appeal.
    For the appellants there was a brief by Fiedler & Fiedler, and oral argument by E. C. Fiedler.
    
    They contended, inter alia, that tbe court erred in bolding tbe reward may be apportioned. Unless a party claiming tbe reward participates in making tbe arrest, be cannot recover, regardless of what be may have done to bring about a conviction. Williams v. West Chicago St. R. Go. 191 Ill. 610; Kogan v. Stophlet, 179 Ill. 150, 44 L. R. A. 810; Furman v. Parke, 21 N. J. Law, 310; Fitch v. SnedaTcer, 38 N. Y. 248; Juniata Go. v. McDonald, 122 Pa. St. 115; Pool v. Boston, 5 Cush. 219;, J ones v. Phcenix Bank, 8 N. Y. 228; Blain v. Pacific Exp. Go. 69 Tex. 74; Shuey v. U. S. 92 U. S. 13.
    For the respondents there was a brief by Smelker & Smelker for respondent Dawe, and a separate brief by J. M. Smith, attorney, and Herbert Kinne, of counsel, for respondent Richards, and oral argument by Mr. Kinne.
    
    They contended, inter alia, that tbe part taken by Ovitz in tbe premises was simply in discharge of bis official duties for which be was paid, and on tbe grounds of public policy be could not claim tbe reward offered. Austin v. Milwaukee Go. 24 Wis. 278; Ring v. Delvin, 68 Wis. 384; Lees v. Oolgan, 120 Cal. 262, 40 L. R. A. 355; Kogan v. Stophlet, 179 Ill. 150, 44 L. R. A. 809, 811, 812; Witty v. Southern Pac. Go. 76 Fed. 217; Cooley, Torts, 175; Keenan v. State, 8 Wis. 132, 130; . Mitchell v. Vance, 5 T. B. Monroe, 528, Gillmore v. Lewis, 12 Ohio, 281.
   Cassoday, C. J.

To appreciate the questions presented, it is important to keep in mind the nature of the action. It is said: “A reward is a recompense or a premium offered by the government or an individual in return for special or extraordinary services to be performed.” 21 Am. & Eng. Ency. af Law, 389. Sueli offer may be made in writing or orally, either to a particular person or class of persons, or to any and all persons complying witb its terms. 21 Am. & Eng. Ency. of Law, 391; Reif v. Paige, 55 Wis. 496, 13 N. W. 473. Of course, “one wbo offers a reward bas the right to prescribe whatever terms be may see fit; and these terms must be complied witb before any contract arises between him and the claimant, though, if the performance substantially corresponds witb the terms of the offer, it will generally be suffi-eient” 21 Am. & Eng. Ency. of Law, 395-6; Amis v. Conner, 43 Ark. 337. Thus it bas been held in Massachusetts that an “offer or reward by public advertisement is to be regarded as a conditional promise. Whoever would entitle himself to the reward must prove that be bas performed substantially the service proposed in the advertisement, though it need not be performed literally.” Besse v. Dyer, 9 Allen, 151. Here the complaint alleges that the reward was offered “for the ‘arrest and conviction’ of the culprit wbo had burglarized the” bank. Tbe admission in the answer of the bank is “for the arrest and securing the conviction of the person wbo bad committed said burglary.” The respective answers of the other defendants seem to admit that the offer was as alleged in the complaint. The court found that the “bank orally offered a reward of one thousand dollars for the arrest and conviction of the person or persons who bad committed the said crime.” We assume that the offer was as found by the court. It seems to be well settled that, where “a reward is offered for the arrest and conviction of a criminal, . . . both the arrest and conviction . . . are conditions precedent to a recovery of the reward.” 21 Am. & Eng. Ency. of Law, 396—7; Jones v. Phœnix Bank, 8 N. Y. 228; Furman v. Parke, 21 N. J. Law, 310; Blain & K. v. Pacific Exp. GCo. 69 Tex. 74, 6 S. W. 679. Of course, it is competent for a party offering a reward to waive strict, or even substantial, conditions of the offer. 21 Am. & Eng. Ency. of Law, 397. Here the bank, when sued, conceded its liability, and paid the money into court, and thereby seems to have admitted that somebody was entitled to the reward. The extent of this admission is simply to the effect that the person who committed the offense had been arrested by some of the claimants and convicted. The important question is, who, of the several claimants, are entitled to the reward? The action is upon contract. Only such claimants as substantially complied with the terms of the offer are entitled to any portion of the reward. The reward was offered for the arrest and conviction of the offender. What is meant by the terms “arrest and conviction ?” This question has recently been answered by the supreme court of Maine in a case where it was held:

“An offer of a reward for The arrest and conviction’ of an unknown perpetrator of a crime cannot be taken literally, but the conditions thereof are substantially performed by a person who obtains possession of the facts necessary to secure his arrest and conviction, and gives them to some proper person interested, although he does not himself make the arrest, but this and the prosecution are made by the proper officers.” Haskell v. Davidson, 91 Me. 488, 40 Atl. 330.

In that case the claimants, in pursuance of the offer, made Investigation, and discovered facts and circumstances which tended strongly to inculpate the accused, and thereupon disclosed such facts and circumstances to the deputy sheriff, who, upon process issued, made the arrest. The accused ¡thereupon confessed and pleaded guilty and was sentenced, the same as bere. As said in that case, the claimant himself' conld not convict the offender. That case followed the ruling-in Besse v. Dyer, 9 Allen, 151, and also Crawshaw v. Roxbury, 7 Gray, 374, where the offer was “for the apprehension and conviction” of the offender. In respect to that ease it was there said:

“The court at nisi prius instructed the jury, in regard to-the service to be performed to entitle the plaintiff to a reward, that the offer of a reward could not be taken literally,, for, as the conviction must be in due course of law, requiring the intervention of the court and jury, a person might be entitled to the reward by becoming the prosecutor, and as such causing the arrest and conducting the case to a conviction, or he might be entitled to it by giving information which should lead to and produce the arrest and conviction of the offender. This instruction was unqualifiedly sustained by the -full-court,” with Shaw, C. J\, presiding.

It will be observed that in these cases the claimant participated in making the arrest to the extent of discovering and disclosing to the officer or person interested facts and circumstances tending to convict the offender. The case at bar is unlike those where the offer; of reward is for information which will lead to the discovery or arrest and conviction of the-offender. In such a case the giving of the information ini compliance with the terms of the offer entitles the person doing so to the reward. Williams v. Carwardine, 4 B. & Ad. 621—3; S. C. 6 E. R. C. 133-9, and notes; Lawson, Contracts, §§ 12, 26. Thus it is stated as elementary: “Where a reward is offered for information, and several persons furnish distinct pieces, which combined make a perfect whole, it may be equitably apportioned amongst them; a bill of in-terpleader being maintainable for such purpose.” 21 Am. & Eng. Ency. of Law, 399, 400. In support of that statement see Fargo v. Arthur, 43 How. Pr. 193; Rea v. Smith, 2 Handy, 193. The so-called findings of fact seem to be based upon tbe theory that the offer of reward by the bank was for the furnishing of information or evidence leading to such arrest and conviction, instead of the offer which was in fact made.

The findings from 6 to 13, inclusive, contain lengthy recitals of evidence in respect to Richards, Ovitz, Dawe, and Terrell, without finding therein any of the facts material to the determination of the controversy as to who had in fact complied with the offer of the bank. The court finally, after the deduction of certain alleged costs, found that the remainder of the fund should be divided equally between Richards and Dawe; and yet there is no finding that they or either of them participated in making the arrest, which was one of the conditions imposed by the offer. The court does find that the plaintiff Ovitz made the arrest, without warrant, within the city limits, and that he was at the time marshal of the city, his official designation being “chief of police,” and that he was on a salary. That he was such official is claimed to be the ground on which the court refused to allow him any portion of the reward. Counsel for the plaintiffs concedes that upon grounds of public policy a public officer cannot recover a reward for an act which it was his official duty to perform. They contend, however, that it was not Ovitz’s official duty to make the arrest without process. The statute prescribed his duties as follows:

“He shall possess the powers, enjoy the privileges and be subject to the liabilities conferred and imposed by law upon constables, 'and be taken as included in all writs and papers addressed to constables. It shall be his duty to obey all lawful written orders of the mayor or common council; to arrest, with or without process, and with reasonable diligence to take before the police justice every person'found in the city in a state of intoxication or engaged in any disturbance of the peace or violating any law of the state or ‘ordinance of such city.” Oh. 212, Laws of 1901.

We find nothing in this statute nor any other making' it his duty to make such arrest without process.

The general rule undoubtedly is:

“Police and other officers may recover the reward offered when the information furnished or the service performed was extra, official, but cannot recover the reward offered if the information furnished or the service performed was within the scope of the duties of such officer.” 21 Am. & Eng. Ency. of Law, 400, 401; England v. Davidson, 11 Ad. & El. 856, 39 E. C. L. 254; Neville v. Kelly, 12 C. B. (N. S.) 740, 104 E. C. L. 740; Davis v. Munson, 43 Vt. 676; Russell v. Stewart, 44 Vt. 170; Bronnenberg v. Coburn, 110 Ind. 169, 174, 11 N. E. 29; Gregg v. Pierce, 53 Barb. 387; Mechem, Pub. Officers, §§ 376, 885.

Thus, it was held in the first of the Vermont cases cited:

“A sheriff acting in reliance upon a general offer of a reward for the capture of a criminal is entitled to the reward the same as though not a peace officer, where he succeeds in making the capture, having no process in his hands.”

To the same effect, Gregg v. Pierce, supra, and Reif v. Paige, 55 Wis. 496, 13 N. W. 473. We must hold that the mere fact that Ovitz was at the time city marshal did not preclude him from the reward or a portion thereof. In respect to the plaintiff Kinn, the court has made no findings, except to state by way of recitals that he voluntarily offered to take and did take Ovitz in his vehicle out to arrest Jelleff, and that on the way out Ovitz gave to him one of the revolvers he was carrying. All the claimants seem to have known of the offer of the reward prior to their doing the several acts by virtue of which they, respectively, claim the reward, or some part thereof. There is nothing in the statutes cited (Stats. 1898; secs. 132, 725a), nor otherwise, to prevent the reward from being apportioned among two or more claimants, who may have participated in complying with the terms of the offer.

All the several claimants were properly brought into the case by interpleader, as prescribed by tbe statute. See. 2610, Stats. 1898.

We are unable to perceive on what theory costs were adjudged in favor of the bank, payable out of the fund in court. The bank was, confessedly, liable to pay the reward, and for costs incurred up to the time of its disclaimer and deposit of the reward in court. Sec. 2189. The whole amount of the reward so deposited in court must be deemed to be the property of the claimants who may ultimately be found entitled thereto. We perceive no reason why claimants who ultimately fail to recover should be exempt from paying costs, nor why those who ultimately recover should not be entitled to costs. The cause seems to have been tried upon a misapprehension of the law as applied to the facts of the ease, and no findings of fact were made as prescribed by the statute. See. 2863, Stats. 1898. The result is that there are no findings nor evidence to support the judgment.

The evidence fails to disclose with reasonable certainty the rights of the respective claimants. It seems clearly to establish that Ovitz made the arrest, and is therefore entitled at' least to share in the reward; but whether Richards can be held to have participated is not clear. Doubtless, if he brought information of his discovery, and secured the cooperation of Ovitz to return with him to make the arrest, then he would be legally a participant. If, after giving the information, he was prevented from accompanying Ovitz by the latter’s subterfuge, then Ovitz should have no larger share than if Richards accompanied him, nor should Richards have less. If, on the other hand, Richards intentionally evaded any participation in the actual arrest, the mere giving of information to Ovitz, not in his official capacity, would not be a compliance with the offer of reward. As to Kinn, his share, if any, in the recovery must depend on the facts, as to Richards, whether the latter intentionally refrained from joining in the arrest, or was prevented by the acts of Ovitz, in which Kinn participated. The trial court is the appropriate place for the determination of such questions. There must be further trial in this case. This is in harmony with what is said in Brown v. Griswold, 109 Wis. 275, 280, 85 N. W. 363, and Bostwick v. Mutual Life Ins. Co. 116 Wis. 392, 92 N. W. 246, 259.

By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for further trial and proceedings according to law. ^  