dissenting. — The evidence for the plaintiff •only shows that the plans “were missed and could not be *149found, ” or, at most, were mislaid or lost. It does not make out a prima fade case of conversion. The argument for the plaintiff proceeded upon the theory that the defendants in sending the plans to their San Francisco house, without the consent of the plaintiff, involved such a misuser of the plans as operated as a conversion of them in law. The contract did not provide where the estimate of costs was to be made, and the defendants sent these plans to their San Francisco house because of its superior facilities to ascertain the cost of constructing the works, which was the object of the contract; but the plaintiff did not know the defendants had a San Francisco house. It is not a case, upon its facts, where a bailee contracts to return the thing bailed at a fixed time, or where time was made the essence of the contract by stipulation, or where, from the nature of the property, or the character of the interest involved, time becomes an essential of the contract; nor where the thing bailed was contracted to be done or to be returned at a particular place or at a particular time without knowing that the defendants had a San Francisco house or any stipulation as to the time when the estimate was to be made, or when the plans were to be returned, other than the law infers were consistent with the purpose of the contract in estimating the cost. The plaintiff left the plans with the defendants for the purpose of ascertaining the cost of constructing a maccaroni factory; and to more thoroughly and satisfactorily effect that purpose, the defendants sent their plans to the San Francisco house to make such estimate and return the result to them, where, by some accident, the plans were mislaid or lost, or “were missed and could not be found” when demanded. Do these facts constitute conversion?
At the argument, it was said that if one person hires a* horse to drive to one place and he voluntarily drives to ■ another, it is a technical conversion of the horse; and so; too it was claimed that when the defendants sent the plans to their San Francisco house to estimate the cost instead of making the estimate at their Portland house, or at least' *150without the consent of the plaintiff, that it amounted to a technical conversion of the plans, for which an action in trover could be maintained. This argument assumes more than the facts warrant, for the contract did not stipulate where the estimate of costs was to be made, whether at the Portland or San Francisco house, and could not involve the consent of the plaintiff to any change in that regard ; but granting all this, there is no analogy between the cases, for the reason that the horse was bailed for one purpose, and it was used for another which constituted the conversion; while the plans were stent to the San Francisco house not for another but the identical purpose for which they were entrusted to the defendants, namely, to estimate the cost. The use made of the plans by the defendants was not of a different kind from that contemplated by the contract between the parties, but was done in pursuance of its purpose, and to effect the object of its bailment.
To constitute conversion, there must be seme act of dominion exerted over one’s property in denial of his right, or inconsistent with it. When one hires a horse to drive to one place and he drives it to another, he unlawfully intermeddles with the property of another for his own benefit and appropriates the horse to a use inconsistent with the terms of the bailment. In sending the plans to the San Francisco house, the defendants neither claimed nor exercised any right of property or dominion over them inconsistent with or in denial of the plaintiff’s right as the lawful owner, but the conceded facts show that the plans were sent there to better effect the purpose of the bailment and without any intention of appropriating the property to their own use, or to destroy them, or to deprive the plaintiff of them as a rightful owner.
“Conversion,” said Field, J., “is based upon 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 it is therefore not every wrongful intermeddling with, or wrongful *151asportation, or wrongful detention of personal property, that amounts to a conversion. Acts which themselves imply an assertion of title or of a right of dominion over personal property, such as a sale, letting or destruction of it, amount to a conversion, even although the defendant may have honestly mistaken his rights; but acts which do not, in themselves, imply an assertion of title or a right of dominion over such property, will not sustain an action of trover, unless done with the intention to deprive the owner of ii temporarily or permanently, or unless there has been a demand for the property and a neglect or refusal to deliver it, which are evidence of a conversion, because they are evidence that the defendants in withholding it, claims the right to withhold it, which is a claim of a right of dominion over it. ” Spooner v. Manchester, 193 Mass. 270.
What are the acts which, by any possible construction, can be considered as an assumption by the defendants of a right of property or dominion over the plans, casts upon them the risks of an owner? They claim no right to the plans, nor denied the right of the plaintiff to them; nor did they refuse, on demand, to deliver them, but, by the evidence of the plaintiff, the plans were mislaid and could not be found, or perhaps were lost. It is the withholding of the thing in his possession, or under his control, when demanded, that makes a prima facie case of conversion, but not when the evidence shows that at the time of the demand the thing or property was not under his control, o'r was mislaid or lost. In such case, the property is not withheld, because the defendant ciaims the right to withhold it, which is a claim of right of dominion over it, but because the property at the time is not under his control and capable of delivery.
The authorities are numerous to the point, that demand and refusal will not be sufficient evidence of conversion, when it appears that the property demanded was not at the time-in the possession nor under the control of the defendant on wham the demand was made, but that it had *152been previously lost or stolen or misdelivered. Said Appleton, C. J.: ‘ ‘In trover, a demand and refusal make out a prima facie case. ” But this is rebutted by proof that the property demanded was not at the time of the demand in the defendant’s possession, nor under his control. Boobier v. Boobier, 39 Me. 407. Trover will not lie against a bailee when the goods have been lost or stolen. Hawkins v. Hoffman, 6 Hill, 586. There must be some wrongful act on the part of the defendant. A loss by mere non-feasance will not sustain this form of action. Bowlin v. Nye, 10 Cush. 416. Trover cannot be maintained against a common carrier for not delivering goods intrusted to him for transportation, if the goods are not in the carrier’s possession at the time of the demand, and have been either lost or stolen. Packard v. Getman, 4 Wend. 613. Indeed, there seems an entire concurrence of authorities that in case of a loss of goods by a bailee, or of larceny from him, that he is not liable in trover. Dearbourn v. National Bank, 58 Me. 274.
In the case at bar the evidence for the’plaintiff is specific to the point that the reason why the plans were not restored to him when demanded, was that they had been mislaid and could not be found, or were lost, and therefore not capable of delivery. The conduct of the defendant may have been negligent or careless, and for which they may be liable in some form of action, but in no legal sense does it constitute acts which imply an assertion of title, or a r'ght of dominion over the property as will sustain an action of trover.
I think the plaintiff failed to establish a case sufficient to be submitted to the jury, and the court committed no error in granting the non-suit.