
    Cow Run Co. v. Lehmer.
    X. Where the owner of a quantity of petroleum delivered it for storage to a company formed for the purpose of transporting and storing such oil, and it was agreed by the owner and the company that certain allowances should be made for evaporation and certain charges be paid for storage, in an action by the owner against the company for an alleged conversion of the oil to its use, the allowance agreed upon for evaporation and the amount due for storage were proper subjects of counterclaim by the company.
    2. The conversion of the oil made the company liable for its value, subject to all allowances and charges agreed upon in the receipts of storage; and the owner could not defeat the right of the company to make such allowances and charges a counter-claim by bringing his action as one for trover at common law.
    Error to the Court of Common Pleas of Washington County, reserved in the District Court.
    The petition in the common pleas was as follows:
    The said plaintiff, James D. Lehmer, complains of said defendant, the Cow Run Iron Tank Company, for that on the 18th day of November, A. D., 1876, he, the said plaintiff, was the owner of and entitled to the immediate possession of the following described goods and chattels, to wit: Thirty-eight hundred and thirty and seven one-hundredths barrels of Cow Run, Ohio, crude petroleum of the value of $16,000; that on said 18th day of November, A. D., 1876, said defendant having obtained and then being in possession of said goods and chattels, and contriving to injure the said plaintiff, did wrongfully and unlawfully convert and dispose of the same to its, the said defendant’s, own use and benefit to the damage of said plaintiff, $16,000.
    Wherefore the said plaintiff prays judgment against said defendant for said sum of $16,000, his damages sp as aforesaid sustained.
    To this petition the defendant answered, first, denying the wrongful and unlawful conversion of the oil, as alleged in the petition; and second, it alleged as a counter claim, that the defendant was a corporation formed for the purpose of receiving, storing and transporting crude petroleum; that from the 10th day of October, 1870, to the 26th day of May, 1874, it received of the plaintiff, at his request, certain petroleum for custody and storage in tanks, in the aggregate 3,671 barrels; that said oil -was received by the defendant under an agreement whereby it was to store the same for a reasonable time, and on demand to deliver it to the plaintiff at the tanks where it was stored, less an allowance for evaporation agreed upon, and subject to certain charges for storage, also agreed upon. That the. terms and conditions upon which the oil was received by the company were: “ That the company shall have a lien upon the said oil for their advances and charges in respect of it, and the same are to be paid before the oil is delivered by the company, to wit: Charges — storage—for forty-eight hours from date, free. After forty-eight hours, and ten days from date, three cents per barrel. After ten days, and to twenty days from date, six cents per barrel, and one-half per cent, of the oil for evaporation. After twenty days, and to thirty days from date, eight cents per barrel and one per cent, per month of the oil for evaporation. For each month, or part of a month, thereafter, five cents per barrel per month from date, and one per cent, per month of the oil for evaporation. Said charges to be made on the quantity of oil received.” And further, that the defendant stored the oil until November 17, 1876, when after deducting for loss by evaporation, according to the receipt of storage, there remained only 1,812 barrels of the oil, and that at that time the charges for storage amounted to $7,249.24, which the plaintiff then refused to pay, and for the amount then claimed by the defendant to be due for storage above the value of the oil, the defendant asked judgment.
    To this defense the plaintiff demurred, and the court sustained the demurrer. Upon the trial the plaintiff gave in evidence the receipts given for the oil when it was delivered to the company, which contained the statement as to the terms and conditions upon which the oil was received, as stated in the answer.
    The court charged the jury at somewhat greater length than seemed necessary upon the issues on trial; but the part of the charge necessary to be considered now was: “ If you find from the evidence, by applying the rules of the law which I have given, that the plaintiff is entitled to maintain this action and to recover damages herein, as already said to you, the rule of damages will be the value of the oil received by the defendant at the date of conversion, less such deductions as you may find from the evidence the defendant is entitled to, for reasonable charges and any advances made by said defendant on any of the oil received by it, and also reasonable deductions for evaporation of said oil, and in consideration of this branch of the case you' may look to any and all the evidence bearing upon and relevant to it, including the certificates offered in evidence.”
    
      Sibley & Ewart and Walter S. Sands, for plaintiff in error:
    As to counter claim: Pomeroy’s Rights and Rem. (2d ed.), § 772; Thompson v. Kessel, 30 N. Y., 383; Gordon v. Bruner, 49 Mo., 570; Edwards on Bailments, § 257; Bigelow on Torts, 437; 25 Md., 269.
    
      E. A. Gruthrie and W. B. Loomis, for defendant in error.
   McCauley, J.

The plaintiff in the court below, deposited his oil with the defendant upon a definite agreement as to the rate to be allowed for evaporation, and upon certain rates to be charged by the defendant for storage. These rates are set up by the answer which was demurred to, and is therefore admitted. If they were not admitted, the receipts for storage given in evidence by the plaintiff show the agreement of storage to be as alleged in the answer.

These receipts make the company liable to re-deliver the oil, on compliance by the depositor with the conditions upon which the oil was to be re-delivered. If the company-failed or refused to re-deliver the oil on demand, and upon compliance by the depositor with the conditions upon which it was deposited, it became liable for the value of the oil subject to the charges for storage and allowance for evaporation. When the plaintiff brought his action for the non-delivery of the oil, he sought to enforce the agreement of storage so far as it was binding upon the defendant, and when the defendant set up as a defense the terms and conditions upon which it was liable tó re-deliver the oil, it set up the terms of the same agreement, so far as they were binding upon the plaintiff. The pleadings, therefore, on both sides set up the matters of agreement between the parties. The reason urged by the defendant in error why the matters alleged in the answer were not proper matter of defense was, that the action was trover, and in such an action matter of contract could not be alleged as counter claim. The petition alleges that the defendant wrongfully and unlawfully converted the oil to' its use. This language seems to have been used to turn the case from one upon contract to one of tort, and thereby to exclude set-off or counter claim; but when the answer alleges the agreements of the parties in reference to the subject matter of the action, the wrongful or unlawful conversion of the oil becomes of no consequence, and the action becomes one in which the rights of the parties are to be determined by their agreements concerning the subject matter in controversy between them. The dealings of the parties about the oil, admitted by the demurrer, show that while the company was liable to account for the oil, whatever liability attached to the plaintiff by reason of such dealings was a. proper counter claim, or at least to the extent of the plaintiff’s claim for the value of the oil, because it was a claim connected with the subject of the action. The cburt therefore erred in sustaining the demurrer to the answer.

Upon the trial, however, the receipts of storage were given in evidence by the plaintiff. These receipts showed, as before stated, what the agreements of the parties were about the oil, and the court instructed the jury to consider the receipts. This action of the court turned the action, at last, from one of tort to one of contract. But the jury were instructed that the rule of damages, in case the plaintiff was entitled to recover; would be the value of the oil at the time of the conversion, less such deductions as should be made for reasonable charges and any advances made by the defendant, and also reasonable deductions for evaporation. In thus instructing the jury the court was clearly in error.

If the receipts were properly in evidence, and their terms were binding upon the parties, they furnished the rule of liability between them, and the instruction that the jury might allow reasonable' charges and reasonable allowance for evaporation was,-in effect, to make a new contract between the parties instead of enforcing the agreement they themselves made. Instead of reasonable "allowances and reasonable charges, the defendant was entitled to the actual allowances and actual charges agreed upon in the receipts of storage to an amount equal to the claim of the plaintiff.

Judgment reversed.  