This section contains the nature of the case and procedural background.

The custom and usage in Cape Cod had been that a person who kills a whale with a specially marked bomb lance owns it. When a lost whale is found on a beach, the killer is then notified of the discovery, and a payment of a finder’s fee is given over. The business and custom of killing whales required special equipment and skills. Ghen (P) killed a whale, leaving his identifying bomb-lance in the whale. The whale was lost and carried away by the tide and found by Ellis 17 miles from the place of the kill on the beach. Ellis knew of or should have known of the custom and usage of the industry. Ellis decided to sell the whale at auction. Rich (D) bought the whale and shipped off the blubber and tried out the oil. P discovered that existence three days later and sent one of his boat crewmen to claim the whale. P sued D for the value of the whale.

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