Wilson Distilling Co. v. Foust Distilling Co.

• Decision Date: 30 September 1943
• Docket Number: Civil Action No. 1163.
• Citation: 51 F. Supp. 744
• Parties: WILSON DISTILLING CO., Inc., v. FOUST DISTILLING CO.
• Court: U.S. District Court — Western District of Pennsylvania

51 F. Supp. 744

WILSON DISTILLING CO., Inc., v. FOUST DISTILLING CO.

Civil Action No. 1163.

District Court, M. D. Pennsylvania.

September 30, 1943.

Douglass D. Storey and Storey & Bailey, all of Harrisburg, Pa., and Tydings, Sauerwein, Levy & Archer, of Baltimore, Md., for plaintiff.

William Hoffenberg, of Baltimore, Md., and Mark T. Milnor, of Harrisburg, Pa., for defendant.

JOHNSON, District Judge.

This is a proceeding for summary judgment under Rule 56 of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c.

By summons and complaint filed in this court, the plaintiff, a corporation of the State of Maryland, brings this action against the defendant, a corporation of the Commonwealth of Pennsylvania, alleging, inter alia, illegal retention by defendant of two hundred and eighty-five (285) barrels of rye whiskey stored in defendant's warehouse and for which defendant issued six (6) negotiable warehouse receipts to plaintiff.

In the first count of the complaint plaintiff alleges: (1) that it is the registered owner of the negotiable warehouse receipts above mentioned; (2) that it paid all storage charges called for by said receipts; (3) that it prepared applications on Form 236 of the Bureau of Internal Revenue for permits to transfer said whiskey; (4) that it secured approval of the said applications by the proper District Supervisors; (5) that it tendered said approvals to defendant; (6) that it paid or offered to pay all lawful charges incidental to said shipment of said whiskey, and (7) fulfilled or offered to fulfill all lawful requirements in connection with said delivery and transportation in bond.

In answer to the first count of the complaint defendant admits, (1) that plaintiff is the registered owner of the six (6) negotiable warehouse receipts; denies, (2) that plaintiff paid all storage charges called for by said receipts; admits (3) that plaintiff prepared applications on form 236 of the Bureau of Internal Revenue for permit to transfer said whiskey; admits (4) that plaintiff secured approval of the said application by the proper District Supervisors; denies (5) that plaintiff tendered said approvals to defendant but therein admits receipt of said approvals from the United States Government Bureau; admits (6) that plaintiff paid or offered to pay all lawful charges incidental to said shipment of said whiskey; and denies (7) that plaintiff fulfilled or offered to fulfill all lawful requirements in connection with said delivery and transportation in bond, and supports that denial by allegations, which, taken with the denial, (2) above, that plaintiff paid all storage charges called for by said receipts, produce the issue to be considered.

It is the contention of the defendant as set forth in its answer that it claims possession of said whiskey and a lien thereon for payment of storage charges for warehousing other barrels of whiskey stored by plaintiff with defendant under the same contract even though represented by different receipts.

The other barrels of whiskey referred to were removed by plaintiff from defendant's warehouse before this controversy arose.

It is the contention of plaintiff, as set forth in its complaint, that defendant, refusing to deliver possession of the warehoused whiskey, is attempting to enforce a lien against the said two hundred and eighty-five (285) barrels now stored, which lien arises from the storage of whiskey under other and different bailments and evidenced by other and different receipts.

In pursuit of that contention, and by reason of defendant's admissions in its answer to count one thereof, the plaintiff has filed a motion for summary judgment on the said first count, alleging that all material facts in the said first count are admitted and that the claim of the defendant of a lien on the presently warehoused whiskey is illegal and unenforceable.

Section 30 of the Uniform Warehouse Receipts Act of March 11, 1909, P.L. 19, 6 P.S.Pa. § 26, provides: "If a negotiable receipt is issued for goods, the warehouseman shall have no lien thereon, except for storage of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed. In such case there shall be a lien for the charges enumerated, so far as they are within the terms of section twenty-seven, although the amount of the charges so enumerated is not stated in the receipt."

This section applies to the present controversy and it has been held thereunder that a charge not entered on a negotiable receipt at the time of issue thereof was invalid even though the prior charge was against the same bailor....