Ferrera v. Parke

• Court: Oregon Supreme Court
• Writing for the Court: STRAHAN, J., (after stating the facts as above.)
• Citation: Ferrera v. Parke, 19 Or. 141, 23 P. 883 (Or. 1890)
• Decision Date: 16 April 1890
• Parties: FERRERA v. PARKE et al.

23 P. 883

19 Or. 141

FERRERA v. PARKE et al.

Supreme Court of Oregon

April 16, 1890

(Per LORD, J., dissenting.)

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

This is an action to recover damages for the conversion of certain chattels. It is alleged in the complaint that on the 15th day of February, 1887, the defendants were partners doing business at the city of Portland, and that on that day the plaintiff was the owner and in the possession of certain personal property, to-wit, "a plan and drawing of a macaroni and faroni paste factory, and of the machinery utensils, and apparatus to be used in said factory, in the manufacture of macaroni and faroni," made and prepared by the plaintiff, by E. Gravero & Co., in Foce, near Genova Italy, of the value of $2,500, and that the defendants thereafter converted the same to their own use, to plaintiff's damage in the sum of $2,500; that before the commencement of this action, at divers times, the plaintiff demanded said property of the defendants; and that they refused, and still refuse, to return or deliver the same to the plaintiffs. The complaint further alleges that he had expended $500 in preparations to run and operate said macaroni and faroni paste factory, and that he was unable to begin or conduct said business by reason of said wrongful conversion, and demands judgment for $3,000 damages. The answer denies the material allegations of the complaint, and then alleges as a further defense that in the year 1887 the defendants were engaged in a machinery business in the city of Portland, Or., and on or about the _______ day of January in said year, the plaintiff delivered to the defendants a plan and drawing of certain structures and machinery for the purpose of having the defendants procure for him certain machinery to comport with said plan and drawing; that, while said plan and drawing were in the possession of the defendants for said purpose, they became accidentally lost and defendants have since been unable to find the same. The answer then expressly admits that plaintiff demanded a return of said property, and that defendants failed to return it, but that they say the demand was made after its loss. The reply denies the new matter in the answer, except the delivery of said property to the defendants, and the purpose for which it was delivered. All the evidence is in the record. The plaintiff's evidence tended to prove that he delivered said property to the defendants, substantially, for the purpose specified in defendants' separate answer, and that they were to return the same to him in 10 days, with their estimates; that the plaintiff continued to visit the house almost daily for nearly a year, and on many of those occasions he asked to have his plans returned to him. Finally one of the defendants told him that it was too bad, but that he had seen the same in San Francisco; that he had been expecting to have it returned to the plaintiff, but that the same could not be found any more. The plaintiff's evidence further tended to prove the value of said property. The plaintiff further gave evidence tending to prove that the defendant sent said plans and specifications to their house in San Francisco, to get a bid there as to the cost of doing the work. The plaintiff having rested his case, the defendants introduced evidence tending to support their defense; and then, on their motion, the plaintiff was nonsuited, from which judgment this appeal is taken.

(Syllabus by the Court.)

Under section 246, Hill's Code, a judgment of nonsuit on the defendant's motion is improper if the defendant was required to produce evidence to meet the plaintiff's case.

. A pleading which is defective by reason of the omission of some material allegation may be aided by the pleading of the adverse party. If the omitted allegation be supplied by the adverse pleading, it is the same as if it were inserted in the party's own pleading.

(Per LORD, J., dissenting.)

Conversion is based on the idea of an assumption by the defendant of a right of property. or a right of dominion over the thing converted, which casts upon him all the risks of an owner and, consequently, it is not every wrongful detention of property that amounts to conversion.

. A demand and refusal will not be sufficient evidence of conversion when it appears that the property demanded was not at the time in the presence or under the control of the defendant on whom the demand was made, but that it had been previously mislaid or was lost.

C.H. Carey, for appellant.

L.B.Cox, for respondent.

STRAHAN, J., (after stating the facts as above.)

The journal entry disposing of this cause in the court below recites that, after the plaintiff had introduced his evidence in chief, and the defendants their evidence in chief, and the plaintiff his evidence in rebuttal, and the plaintiff having announced that he had no more evidence to offer, the defendants filed their written motion for judgment of nonsuit, which was duly argued and submitted to the court, and by the court sustained; and then follows the usual judgment of nonsuit, which awards costs to the defendants.

The practice on this subject in this state is regulated by section 246, Hill's Code, which provides: "A judgment of nonsuit may be given against the plaintiff, as provided in this title, *** (3) on motion of the defendant, when the action is called for trial, and the plaintiff fails to appear, or when, after the trial has begun, and before the final submission of the cause, the plaintiff abandon it, or when, upon the trial, the plaintiff fails to prove a cause sufficient to be submitted to a jury." Under this section of the Code, the test is whether or not the plaintiff's evidence tends to prove a cause sufficient to be submitted to a jury, and in passing on this question the 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, 7 P. 318, this court said: "To authorize the court to nonsuit 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 nonsuit where, upon the pleadings and evidence introduced, a prima facie case has been made out against him. So, 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, Id. 459. Prima 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 defendants had 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. The learned counsel for the respondent, in support of the practice adopted in the court below, cites Jansen v. Acker, 23 Wend. 481; Rudd v. Davis, 3 Hill, 287, 7 Hill, 529; People v. Cook, 8 N.Y. 67; Lomer v. Meeker, 25 N.Y. 361; Geary v. Simmons, 39 Cal. 224. These authorities certainly do tend very strongly to support the respondent's contention, but they are at variance with what has already been settled in this court. The particular statutes under which these cases were decided, if any, were not brought to our notice; and if there were no statutes governing such practice, but those cases simply announced the general course of procedure in those states, the cases could not be accepted as controlling authority in this state.

Respondent's counsel has criticised the complaint, and doubtless itwould have been more in harmony with the spirit of Code pleading if it had alleged, among 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 supplied that by an 'express aider'. Bliss, Code Pl. s 437. These allegations are contained in the defendent's answer, with the further matter designed to excuse suchfailure.

These are questions which should have been tried out before thatjury, upon the merits of which we indicate no opinion at this time, butreverse the judgment, and remand the cause for a new trial.

THAYER, C.J., (concurring.)

I concur with Judge STRAHAN in...