Hastings v. Harkoff

• Court: Washington Supreme Court
• Writing for the Court: HAMILTON; OTT
• Citation: Hastings v. Harkoff, 379 P.2d 914, 61 Wn.2d 648 (Wash. 1963)
• Decision Date: 21 March 1963
• Docket Number: No. 36288
• Parties: M. F. HASTINGS, Receiver of Lynden Frozen Foods, Inc., Appellant, v. John HARKOFF and Mary Harkoff, his wife, Respondents.

Page 648

61 Wn.2d 648

379 P.2d 914

M. F. HASTINGS, Receiver of Lynden Frozen Foods, Inc., Appellant, v. John HARKOFF and Mary Harkoff, his wife, Respondents.

No. 36288.

Supreme Court of Washington, Department Two.

March 21, 1963.

Rehearing Denied April 29, 1963.

Joseph T. Pemberton, Bellingham, for appellant.

Wright, Wendells, Froelich & Power, Seattle, for respondent.

HAMILTON, Judge.

This is an appeal from a judgment of dismissal based upon plaintiff's opening statement.

Plaintiff, as receiver for an insolvent corporation, instituted this action seeking to recover from defendants alleged preferential payments. Defendants claimed inter alia, lien rights to such payments arising out of warehouse receipts issued by them.

Determination of the negotiability of the warehouse receipts is crucial. If the receipts are negotiable, defendants' lien rights are limited, are certain of the payments made to defendants may be preferential. If the receipts are non-negotiable, defendants' lien rights are greater, and the questioned payments may not be preferential.

The warehouse receipts in question, a copy of which was before the trial court, are somewhat ambiguous. In the body of the receipts, it is stated that the produce covered thereby will be delivered to a named bank or its order, thus bringing them within the definition of a negotiable receipt contained in RCW 22.04.060. ¹ Printed across the face of the receipts in bold-face type, however, is the term 'non-negotiable,' presumably in compliance with RCW 22.04.080. ²

In his opening statement, counsel for plaintiff characterized the receipts as nonnegotiable. Upon the basis of such characterization, the trial court granted the defendants' motion to dismiss. Thereafter, on motion for new trial, plaintiff's counsel amended his opening statement by asserting that the receipts were negotiable, under the provisions of RCW 22.04.060, and again urged, as in his opening statement, that, in any event, the defendants, by their actions, lost or surrendered such lien rights as they were claiming.

The trial court, in denying plaintiff's motion, then held that, assuming plaintiff's theory of negotiability to be correct, under the circumstances presented by the form of the receipts and revealed by plaintiff's opening statement, the parties handling the receipts in fact recognized and treated the warehouse receipts as nonnegotiable.

Under the circumstances of this case, consideration being given to the relationship of the parties, the possible rights of creditors, and the events leading up to the receivership, interpretation and categorization of the warehouse receipts, at this stage of the proceedings, appear to be mixed questions of law and fact.

In Ellington v. Freigang, 56 Wash.2d 718, 720, 355 P.2d 19, 20, we stated:

'In order for admissions in an opening statement to constitute grounds for dismissal, they must be distinct, formal, unequivocal, and deliberately made. Charda...