¶1delivered tbe opinion of tbe court.
¶2Tbe journal entry disposing of this cause in tbe court below recites tbat after tbe plaintiff bad introduced bis evidence in chief, and tbe defendants their evidence in chief, and tbe plaintiff bis evidence in rebuttal, and the plaintiff having announced tbat be bad no more evidence to offer, tbe defendants filed their written motion for judgment of non-suit, which was duly argued and submitted to tbe court, and by tbe court sustained, and then follows tbe usual judgment of non-suit which awards costs to tbe defendants. Tbe practice on this subject in this State is regulated by section 246, Hill’s Code, which pro vides:
“A judgment of non-suit may be given against tbe plaintiff as provided in this title— … 3. On motion of tbe defendant, when tbe action is called for trial, and tbe plaintiff fails to appear, or when after tbe trialbas begun, and before tbe final submission of tbe cause, tbe plaintiff abandons it, or when upon tbe trial tbe plaintiff fails to prove a cause sufficient to be submitted to tbe jury.”
¶3Under this section of tbe Code tbe test is, whether or not tbe plaintiff’s evidence tends to prove a cause sufficient to be submitted to a jury; and in passing on this question *144the evidence submitted by the defendant, if any, cannot be considered for any purpose, for the reason that if it is necessary for the defendant to meet the plaintiff’s case by evidence, then the case becomes one for the jury and could not be withdrawn from them in this summary manner. This view has been steadily maintained by this court in every case in which the question has arisen. In Grant v. Baker, 12 Or. 329, this court said: “To authorize the court to non-suit a plaintiff, the latter must fail to prove a cause sufficient to be submitted to a jury It must be such a case, that if the jury were to find a verdict for the plaintiff, the court would be required to set it aside for the want of evidence to support it. Civil Code, §§ 243, 244. It would have to be a case where there was a total failure of proof of some material allegation of the complaint.” … So in Salmon v. Olds, 9 Or. 488, it was held that a defendant was not entitled to a non-suit, where, upon the pleadings and evidénce introduced, a prima facie case has been made out against him.
¶4So also in Tippin v. Ward, 5 Or. 454. it was held that a case should be submitted to the jury, unless there is an entire lack of evidence tending to maintain the issues on the part of the plaintiff; or unless upon the whole case made by the plaintiff himself it appears beyond doubt that the plaintiff has no right to recover; and the same principle was applied in Southwell v. Beezley, 5 Or. 459.
¶5Prima facie the plaintiff made a case sufficient to be submitted to the jury. He showed the delivery of his property to the defendants for a particular purpose, gave testimony tending to prove its value, a demand on the defendants for its return, and their failure to return it. The jury had the right to pass on this evidence and to say under proper instructions of the court whether or not the plaintiff was entitled to a verdict. He was, unless the effect of this evidence was countervailed in some way by the defendants, and they presented another question proper for the jury to consider. The defendants set up that the property was lost while it was in their custody. Whether the *145defendants bad the right to send said property to San Francisco, whether it was lost, and if so was it under such circumstances as would exonerate the defendants from all liability, were all questions presented by the defendants, and they were for the jury under proper instructions by the court.
¶6The learned counsel for the respondents, in support of the practice adopted in the court below, cites Jansen v. Acker, 23 Wend. 481; Rudd v. Davis, 3 Hill, 287 S. C. 7 Hill, 529; People v. Cook, 8 N. Y. 67;
¶74. Respondents’ counsel has criticised the complaint, and doubtless it would have been more in harmony with the spirit of code pleading if it had alleged, amongst other things, the delivery of this property to the defendants, and the object of such delivery, etc., and the defendants’ failure to return it; but the defendants have supplied that by an “express aider” in their answer. Bliss Code Pl. § 437. These allegations are contained in the defendants’ answer, with the further matter designed to excuse such failure.
¶8These are questions which should have been tried out before that jury, upon the merits of which we indicate no opinion at this time, but reverse the judgment and remand the cause for a new trial.
¶9(1) 59 Am. Dec. 451.
¶10concurring. — I concur with Judge Strahan in his conclusions in this case regarding the rule of non-suit of a plaintiff under the Code of this State, and as to the sufficiency of the evidence upon the part of the appel*146lant to establish prima facie cause of action against the respondent herein for the conversion of the plans in question. That said plans were delivered to the respondents with the understanding that they should make and furnish to the appellant an estimate of the cost of constructing the machine which the plans represented, was conceded. And the appellant testified that the respondents were to give him an answer regarding the matter within about ten days; but that he had never been able to obtain any such estimate or recover back his plans, although he had called for them and demanded their return a great number of times. This of itself was sufficient to prove a conversion of the plans, unless their detention was satisfactorily accounted for. And it cannot reasonably be claimed that the failure of the respondents to return the plans to the appellant was excused by anything which appeared in the testimony adduced by the latter. The appellant himself testified that one of the respondents, Mr. Parke, told him that he saw the plans in San Francisco, and that he had been looking for them to send them back to appellant, but had missed them, and that they could not be found. He, however, testified in the same connection that when he placed the plans in the hands of the respondents he did not know that they had a house in San Francisco; that he never authorized them to send the plans to San Francisco.
¶11It also appeared from the testimony of Mr. Arthur, manager of the respondent’s business at Portland, when on the stand as a witness for the appellant, that he had a vague recollection that the plans were sent to San Francisco either .by himself, Mr. Campbell, mechanical engineer for the respondents, or were taken there by Mr. Parke; ¡and upon his cross-examination by respondents’ counsel, he .testified that the object in sending the plans to San Francisco was simply to get a bid. from the home office at what they could manufacture .the machine for; that they were endeavoring to secure a price; that the facilities for manufacturing in San Francisco were much better than in i Poxtland; that he continued with respoE dents at their Por t-*147land house until about July 1, 1888, and that during the time he was there the respondents never undertook to make use of these plans or to appropriate them.
¶12The main point in the case is, whether the appellant, by leaving the plans with the respondents at Portland, under the circumstances and for the purpose as testified to by him, authorized the respondents to send them to their home office in San Francisco, for the purpose claimed by them. If the respondents were not so authorized then they were guilty of wrongful conversion of the property, as ‘ ‘any interference subversive of the right of the owner of personal property to enjoy and control it, is a conversion.” Budd v. Multnomah St. Ry. Co. et al. 12 Or. 271. It was not nee e isary that the respondents should have made use of the plans for their own benefit or appropriate them to their own personal advantage in order to constitute a conversion. “The question is, did the respondents exercise dominion over them in exclusion or in defiance of the appellant’s right.” Page 108, vol. 4, Am. & Eng. Ency. of L. The gist of the conversion is the usurpation of the owner’s right of property, and not the actual damages inflicted. Note 1, page 113, id.Nor is it necessary that the act should be wilful or intentional to render it a conversion. ‘ ‘If a carrier by mistake delivers goods to the wrong person he is liable in trover. ” Note 1, p. 112, vol. 4. id.“Honesty of purpose is not a defense, and can in no measure shield the defendant from liability, except to prevent the giving of punitive damages. ” Wait’s Actions and Defenses, vol. 6, p. 164. ‘ ‘And it makes no difference — in case of bailment — that the depositary did the act for the benefit of the depositor or that it really inured to his benefit. He has no right to use the property for any purpose other than that for which it was left with him, upon any consideration or for any purpose, not even for its preservation.” Page 165, id.“Any abuse of possession, lawfully acquired, or any breach of the trust under which it was placed in the defendant’s hands, is an actionable conversion.” Page 166, id.
¶13*148The appellant, if he testified truthfully, — and for the purposes of this appeal we must presume he did, — delivered the plans in question to the respondents for the specific purpose of obtaining from them certain information which they were to furnish in ten days. That certainly did not authorize the respondents to send the plans to San Francisco, when it would require at least double the specified time to send them there, have the estimate made, and have them returned. It was clearly the duty of the respondents, before sending the appellant’s plans out of the State, and exposing them to loss, to have consulted with him in regard to the matter. He had evidently been to great trouble and expense in procuring the plans, and had the same right to exercise control over them that every one has to exercise dominion over that which belongs to him; which right he was deprived of when the plans were sent away without his consent or knowledge.
¶14The respondents doubtless acted in good faith in the affair and intended no wrong, but they seem to have been careless and indifferent, at least they had no intelligent idea as to when, how or by whom the plans were sent away, though the appellant evidently was as constant in calling upon them in regard to the matter as any person having a favorite object in view would be likely to-be. He probably became a source of annoyance to the managers of the respondents’ business and received very lit fie attention; but he had rights which they were bound to respect, and the workings of his Italian brain, if encouraged, might have produced results important to himself and the community. The respondents, at all events, should not have usurped his right to exercise dominion over his own property and exclude him from its control, which I think they did do, if they sent the plans to San Francisco without his consent. Whether they did so or not, and whether they acted prudently in the affair, are in my opinion proper questions to be submitted to a jury.