or shipments are made. * * * ' In answer to the fifth count defendant alleged no knowledge by answer filed on May 28, 1943. The substance of the 'agreement of indemnity' appears in the pleadings for the first time as an exhibit attached to the affidavits accompanying plaintiff's motion for summary judgment and filed on August 3, 1944. To that motion there was filed on September 16, 1944, defendant's affidavit of defense wherein it is alleged that the defendant is not liable to the present plaintiff under the so-called agreement of indemnity by reason that the agreement was not legally assignable to the present plaintiff.
The defendant's position is well taken. The warehouse receipts covering the whiskey in question contain a provision on the face thereof expressly absolving the defendant from any liability for damage by reason of loss or damage due to evaporation or leakage. That provision is not mentioned by either of the parties hereto, but it is to be noted that the negotiable receipt, which serves to notify a subsequent holder of his rights contains, as part of the express contract, a provision against any claim for damages due to evaporation or leakage. The letter of February 20, 1940, contains a warranty which is in direct opposition to the terms of the warehouse receipts. The letter of warranty was given to plaintiff's predecessor and rights thereunder were not assignable. Under the Pennsylvania Act of Assembly of March 11, 1909, P.L. 19, Sec. 41, 6 P.S. § 161, 'A person, to whom a negotiable receipt has been duly negotiated, acquires thereby, -- a. Such title to the goods as the person negotiating the receipt to him had, or had ability to convey * * * .' That the plaintiff's predecessor had no ability to convey the warranty rights contained in the letter of warranty because no privity of contract existed between the defendant and the present plaintiff is held by the following cases: Chanin v. Chevrolet Motor Co. et al., D.C., 15 F.Supp. 57; Rachlin v. Libby-Ownes-Ford Glass Co., 2 Cir., 96 F.2d 597, and Timberland Lumber Co., Limited, v. Climax Mfg. Co., 3 Cir., 61 F.2d 391. The plaintiff cites the case of Conestoga Cigar Co. v. Finke et al., 144 Pa. 159, 22 A. 868, 869, 13 L.R.A. 438, but in that case where it was held that the warranty ran in favor of a subsequent purchaser, the goods warranted were sold by samples bearing labels or tags descriptive of quality, relied upon by subsequent as well as original purchasers. Mr. Chief Justice Parson in his opinion stated that that case was one of first impression, that the court had decided only what was before it, and did 'not anticipate cases which might arise in the future under other circumstances.'
Privity of contract cannot be obtained by a mere assignment of a contract. The consent of the parties to the contract must be shown in some manner. Where a mortgage conveys, in addition to the described real estate, the rents, issues and profits thereof, no privity of contract is created thereby between the mortgagee and a tenant of the mortgagor. See the opinion of this court in the case of Malamut v. Haines, reported in, D.C., 51 F.Supp. 837. See also Peoples-Pittsburgh Trust Co. v. Henshaw, et al., 141 Pa.Super. 585, and the reference therein on pages 588 and 589 to the Statute of Anne, 15 A.2d 711, Ch. 16 Secs. 9 and 10, whereby a non-existent privity between the tenant and his landlord's alienee was supplied by statute due to the necessity to create more easy redemption and foreclosure of mortgages.
The law pertaining to privity of estate must not be confused with the privity between individuals conveying or succeeding to the estate. In that case the privity attaches to the real estate itself and binds those in successive possession. Such is not the law with regard to personal property.
The defendant also contends in relation to plaintiff's motion for summary judgment on count five of the complaint that the supporting affidavit of Klein stating the custom of the whiskey trade as applied to warranties against outage is an expression of the affiant's opinion and does not meet the requirements of evidence. This point is also well taken. The existence of a usage or custom can only be proven by instances of actual practice; a succession of individual facts; and cannot be proven by the opinion of a witness. Ames Mercantile Co. v. Kimball S.S. Co., D.C., 125 F. 332, 336. The rule of law that custom or usage may not be shown to vary the terms of a written contract unless the custom or usage is so well established, general and uniform that the parties are presumed to act and contract with reference to it. Makranski et al. v. Weston et al., 304 Pa. 383, 387, 155 A. 741, is not disturbed by the ruling in the Ames' case, supra, as the court held that the terms of the contract therein were unintelligible and required clarification. In the instant case if the custom or usage of passing on to subsequent title holders such a special warranty as is under consideration here the measure of proof thereof must be adequately met. Here the custom is not pleaded and the supporting affidavit is insufficient. The plaintiff contends that the present plaintiff is a corporate successor to the original holder of the warranty rather than a buyer on resale. That no merit can attach to such a contention is illustrated by the fact that plaintiff has pleaded his instruments of title wherein his plaintiff acquired title by bargain and sale.
In the sixth count, also added to the complaint by amendment, the plaintiff alleges a duplicate payment to defendant for storage charges in the amount of $ 146.00. In answer thereto the defendant admits receipt of the double payment but avers that plaintiff is indebted to defendant for storage charges in the amount of $ 705.20 and admits a set-off of the $ 146.00 against the $ 705.20. The plaintiff thereupon filed a reply to defendant's answer denying indebtedness for any storage charges.
Examination of the numerous pleadings filed reveals that in addition to the controversy mentioned in the above paragraph a controversy still exists as to the measure of damages, the amount of outage loss, claim for tax refund, transfer of title, duplication of assignments and denial of facts contained in the supporting affidavits. These are triable issues and a summary judgment will not lie thereon.
The defendant has also filed a motion for summary judgment based on the fifth count of the complaint alleging that the plaintiff has no rights under the letter of warranty of February 20, 1940. The defendant's motion must be denied. The matter of custom and usage may be later raised by the plaintiff in a proper manner and that proof may affect these proceedings materially. That point cannot be decided here and the issues raised must proceed to trial.
The motion of the plaintiff to amend the pleadings by substituting the name of Hunter-Wilson Distilling Company, Inc., as plaintiffs, is hereby granted, and the Clerk of the Court is hereby directed to mark the docket accordingly; the motion of the plaintiff for leave to amend plaintiff's motion for summary judgment by substituting the new affidavits of Frank Desmond and H. C. Levin as exhibits A and B, respectively, in said motion, is granted, and the motions for summary judgment by plaintiff and by defendant are hereby denied.
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