Pennsylvania law defendant's vendee could not assign the warranty to the plaintiff and that plaintiff as assignee cannot recover from the defendant.
As an additional arrow to his bow, plaintiff called three witnesses in an attempt to show that there was a custom in the whiskey trade that a warranty as to excess outage travels with the barrel, relying particularly upon Conestoga Cigar Co. v. Finke et al., 144 Pa. 159, 22 A. 868, 869, 13 L.R.A. 438. See comment on this case in Wilson Distilling Co. v. Foust Distilling Co., D.C., 60 F.Supp. 373 at page 375. It is sufficient for present purposes to say that considering the testimony of plaintiff's witnesses and that of the president of the defendant corporation, we find there was no such custom.
'A custom in order to be considered in construing a contract must be shown to have been known to both parties to a contract, or so well established, general, and uniform that the parties are presumed to act and contract with reference to it. Miller v. Wiggins, 227 Pa. 564, 76 A. 711, 19 Ann.Cas. 942. 'Particular usages and customs of trade or business must be shown to have been known by the parties to be affected by them or they will not be binding, unless they are so notorious, uniform and well established that a knowledge of them will be presumed.' 17 Corpus Juris 458, § 18.' Makransky v. Weston, 304 Pa. 383, 387, 155 A. 741, 743; Everly v. Shannopin Coal Co., 139 Pa.Super. 165, 11 A.2d 700; Doyle v. Atlantic Refining Co., 357 Pa. 92, 53 A.2d 68.
'The existence of a useage 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.' Wilson Distilling Co. v. Foust Distilling Co., supra, 60 F.Supp. 373, at page 375; Ames Mercantile Co. v. Kimball S. S. Co., D.C.Cal., 125 F. 332; Shipley v. Pittsburgh & L. E. R. Co., D.C., 68 F.Supp. 395, 32 C.J.S. Evidence § 483, p. 139; Aurand v. Universal Carloading & Dist. Co., 131 Pa.Super. 502, 200 A. 285.
Finally plaintiff contends that Old and New Wilson were subsidiaries of Seagrams (the evidence is to the contrary at least from March 1940 to December of 1940) and that there was, in effect, not a sale in the usual sense, all assets having been conveyed except the stock of Old Wilson, its subsidiaries and affiliates, but a business merger. So far as the testimony showed, Old Wilson continued its corporate existence after the sale to New Wilson. See Wilson Distilling Co. v. Foust Distilling Co., supra, 60 F.Supp. at page 376.
The doctrine of Edirose Silk Mfg. Co. v. First Nat. Bank & Trust Co., 338 Pa. 139 at page 143, 12 A.2d 40, and Great Oak B. & L. Ass'n v. Rosenheim, 341 Pa. 132 at page 137, 19 A.2d 95, is not here apposite, nor do we find any relevancy or help for plaintiff's contention in the holding in Commonwealth ex rel. Department of Justice v. Socony-Vacuum Oil Co., Inc., 347 Pa. 410, 32 A.2d 631.
The defendant has presented testimony in support of his set-off amounting to $ 705.20. On May 22, 1942, New Wilson surrendered to the defendant warehouse receipts covering 1763 barrels of whiskey and paid the storage charges to May 31, 1942. The whiskey was not delivered until September of 1942. The defendant contends that the delay was due to causes over which it had no control, e. g., labor supply and inability to get railroad cars. The plaintiff in Count Two of the complaint sought to hold defendant responsible in damages for delay in making delivery. This count was, however, abandoned by plaintiff at the trial. There was an agreement between the parties that storage should be paid on all whiskey for the time that it was actually in the defendant's warehouse. We feel, therefore, that defendant's counterclaim should be allowed in the sum of $ 705.20.
Heretofore we have found for the plaintiff in the sum of $ 534.80, and the sum of $ 146.00, or a total of $ 680.80. Making allowance for defendant's counterclaim, defendant is entitled to a judgment against the plaintiff in the sum of $ 24.40.
An order in compliance with this opinion will be filed herewith.