Wilson Distilling Co. v. Foust Distilling Co.

• Decision Date: 30 April 1945
• Docket Number: Civil Action No. 1163.
• Citation: 60 F. Supp. 373
• Parties: WILSON DISTILLING CO., Inc., v. FOUST DISTILLING CO.
• Court: U.S. District Court — Western District of Pennsylvania

60 F. Supp. 373

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

Civil Action No. 1163.

District Court, M. D. Pennsylvania.

April 30, 1945.

Douglas 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 motion by plaintiff for leave to amend all its pleadings by substituting a different corporate title for the plaintiff and also motions for summary judgment filed by both parties.

This case has been before this court previously on a motion for summary judgment by plaintiff and judgment was then granted to plaintiff under the first count of the complaint. That part of these proceedings is reported in 51 F.Supp. 744.

The facts are as follows: The defendant sold to Wilson Distilling Co., Inc., certain barrels of whisky and as a warehouseman issued negotiable warehouse receipts therefor. The plaintiff was described in the complaint as a Maryland corporation. The affidavit of the president of plaintiff corporation attached to the original notice of plaintiff for summary judgment stated that plaintiff was a New York corporation. Plaintiff has filed a motion to amend all pleadings filed in this case. The motion to amend is accompanied by a new affidavit by the plaintiff's president stating that plaintiff at the time of filing the original motion for summary judgment, was a Maryland corporation but that by due corporate proceedings, on October 31, 1944, the plaintiff changed its corporate title to Hunter-Wilson Distilling Company, Inc. In the same motion to amend the pleadings the plaintiff also requests permission to substitute new affidavits for the original affidavits attached to the original motion for summary judgment in order to correct the corporate name of plaintiff.

The defendant opposes the amendments and contends that the motion to amend by substituting the new corporate title of plaintiff brings in a stranger to the transactions related in the pleadings. The defendant also contends that the new affidavits which plaintiff moves to have substituted vary materially in substance from the affidavits now on file and further that the Rules of Civil Procedure make no provision for the substitution of moving affidavits.

The contentions of the defendant on the motion to amend cannot be sustained. The motion to amend the pleadings insofar as the corporate title of the plaintiff is concerned is made for the purpose of correcting the record where reference to a New York corporation is erroneously made and for the purpose of reflecting in the pleadings the change in corporate name which has taken place during the pendency of this litigation. The new affidavits should be permitted to be filed. In such a matter as this a substitute is the equivalent of an amendment, and such an amendment is allowable at any stage of the proceedings. If there is any variation in the substance of the affidavits under consideration, advantage may be taken thereof at trial by the defendant or the plaintiff may later move for amendment to make the pleading conform to the proof adduced. Under Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, amendments should be freely granted. The motion of the plaintiff for leave of court to amend the pleadings is granted and will so appear on the Order of Court attached to plaintiff's motion.

The motion for summary judgment filed by plaintiff is based upon the fifth and sixth counts added to the complaint by amendments heretofore made.

The fifth count alleges that plaintiff's corporate predecessor acquired certain barrels of whiskey from defendant "in respect of which defendant agreed to indemnify and save harmless plaintiff's said predecessor from any damage suffered as a result of the loss of whiskey * * * while in storage in defendant's warehouse in excess of the outages allowed by the United States Government for purposes of taxation, and said whiskey, together with said rights of indemnity, were subsequently acquired by plaintiff." The remainder of the fifth count alleges a loss of 438.3 proof gallons of whiskey in excess of the outage allowed by the government. The word "outage" means loss by evaporation or leakage.

The agreement of indemnity mentioned in the fifth count is set forth in a photostatic copy of a letter attached to plaintiff's motion for summary judgment as Exhibit No.2. The letter is from the defendant and is addressed to Mr. Joseph H. Reinfeld, Wilson Distilling Co., Inc., 630 Fifth Avenue, New York City, and is dated February 20, 1940. The pertinent part is as follows: "We also wish to advise that we will guarantee any excess outage on the above lot in accordance with the statutory allowance given by the government. It is further understood that when the allowance is to be allowed, it will be determined on a regauge basis as of the time tax payment 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...