85 Pa. 255 | Pa. | 1877
delivered the opinion of the court, January 7th 1878.
The first specification alleges that the court below erred in
The second specification is not free from difficulty. The learned judge at the conclusion of his charge submitted to the jury as a question of fact, whether the oil restored to the Caledonia tank by Johnson & Co. was placed there in return for the oil which it was conceded they drew out, or whether they put it back to satisfy the claim of the plaintiffs below, for the injury caused by Johnson & Co. in pumping a quantity of worthless stuff from their slop tank into the tank of plaintiffs. I find no evidence in the cause that Johnson & Co. restored any oil for any other purpose than that of replacing
The third and fourth specifications allege error in the answers to points. It was urged that the answer to the plaintiffs’ first point should at least have been qualified; that it refers only to quantity and ignores quality and every other essential element in the case. We have already said that the record fails to disclose any serious contention in regard to the quality of the oil. Under the facts of the case we do not regard either the point or the answer objectionable. The defendants’ first point, which was refused, raised the question of the right of the plaintiffs to maintain replevin where the oil had been mixed without tho act of the defendants. In the recent case of Hutchison v. The Commonwealth, 1 Norris 472, the question of the effect of commingling oil in tanks and pipe lines %vas discussed at some length. It is not necessary to go over the ground again. It is wrell settled as a general principle that, in Pennsylvania, replevin lies wherever one man claims goods in the possession of another, and this whether tho claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris 507, and cases there cited. In this case both the plaintiffs and the defendants had a large oil tank, situated near each other. Johnston & Co. had an oil-refinery near said tanks, and had also the right of storage in each of them to the extent of two thousand barrels. The tank of tho defendants w’as connected with the refinery by means of a pipe, and was used by Johnson &
The plaintiffs had a clear right to follow and reclaim their oil by a writ of replevin, unless prevented by the fact of its mixture with other oil of the defendants. A given number of barrels of plaintiffs’ oil having been unlawfully drawn out of their tank and placed in defendants’ tank, they were entitled to have the same number1 of barrels of oil put back again. Had the character of the oil been so essentially changed by the mixture that one barrel would not be the equivalent for another barrel, the case would have presented a different question — one that we are not now required to pass upon. We are not prepared to say that the defendants are wholly without responsibility for the mixture. They allowed Johnson & Co. to use their tank as a supply or feeder for their refinery; to draw out oil at will, and replace it. This necessarily involved a mixture of the oil. The right of the owner of oil in tanks or pipe lines to take out his aliquot part was distinctly recognised in Hutchison v. The Commonwealth, supra. As bearing upon the same principle, we may refer to Wood v. Fales, 12 Harris 246; Tripp v. Riley, 15 Barb. 333; Fobes v. Shattuck, 22 Id. 568; Kimberly v. Patehin, 19 N. Y. 330. The judgment is affirmed!