Rubinstein v. Washington Cold Storage Co.

Decision Date19 June 1943
Docket Number28916.
Citation138 P.2d 852,18 Wn.2d 238
PartiesRUBINSTEIN v. WASHINGTON COLD STORAGE CO. et al.
CourtWashington Supreme Court

Department 1.

Action by Carl Rubinstein against the Washington Cold Storage Company and others, to recover value of whiskey stored with named defendant. From an adverse judgment, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, for appellant.

Ryan Askren & Mathewson, of Seattle, for respondents.

MALLERY Justice.

This is an action by Carl Rubinstein, the appellant here and plaintiff below, to recover the reasonable value of nine barrels of whiskey stored with the Washington Cold Storage Company in Seattle, Washington. Prior to commencement of the action, Washington Cold Storage Company dissolved by voluntary proceedings of the stockholders. All of the assets of the corporation were distributed to the defendant, Pacific Fruit & Produce Company, a corporation which was the beneficial owner of all of the stock of said corporation. The defendants Tom S. Patterson and W. A. Yeomans were each the owners of record of one share of stock but beneficial ownership therein was vested in Pacific Fruit & Produce Co. The defendant C. L. Anderson was the liquidating trustee appointed by the stockholders to complete the dissolution of the corporation. For the purpose of this opinion we will refer to the Washington Cold Storage Company as if it were the principal respondent because all testimony and evidence relates to it.

On June 30, 1934, Northwest Distilleries, Inc., a Washington corporation, with its office in Seattle, Washington, stored in the warehouse of the cold storage company twelve barrels of whiskey all of which were described in the negotiable warehouse receipt. Thereafter three of said barrels were withdrawn and delivered by the defendant, leaving remaining subject to the receipt the nine barrels involved in this action.

The evidence shows that the warehouse receipt in question was pledged to National Bank of Commerce, Seattle, Washington, to secure advances made to Northwest Distilleries, Inc., to whom the warehouse receipt was issued. Those advances were guaranteed by Carl Rubinstein who was later called upon to and did pay off the obligations due the bank, whereupon the warehouse receipt was assigned and delivered to him. For the purpose of this case Carl Rubinstein may be considered as the owner of the warehouse receipt.

The complaint alleges that on or about July 1, 1940, upon inspection being made by the U.S. Government Liquor Inspector of liquor in storage for the purpose of imposing federal liquor tax, it was discovered that all nine barrels held by the storage company under said warehouse receipt were entirely empty and contained no whiskey whatever.

The respondents in their answer denied that there was any whiskey in the barrels at the time demand was made for delivery thereof and as an affirmative defense alleged that the whiskey placed in storage was improperly packaged so that the same leaked out and was entirely destroyed and lost through no fault whatsoever of the Washington Cold Storage Company, or any of the defendants.

The controverted issue here relates solely to the question of whether respondent adequately performed its duties as bailee with respect to the nine barrels of warehoused whiskey.

It is appellant's position that the evidence falls short of sustaining the essential findings upon which the decision was predicated. They are paragraphs VII, VIII, IX and X of the Findings of Fact which are as follows:

'VII. On various occasions employees of the plaintiff and the Northwest Distilleries, Inc., and the defendant, Washington Cold Storage Co., went to said room together and withdrew whiskey from said barrels.
'VIII. At the time of the storage of said barrels and the issuance of said werehouse receipt as aforesaid, some of the barrels were leaking and the Washington Cold Storage Co. on divers and sundry occasions advised the plaintiff and Northwest Distilleries, Inc., that the said barrels were leaking due to improper cooperage and requested them to properly re-cooper said barrels but the evidence does not establish the proper repairs were made.
'IX. During the fall of 1938 the Washington Cold Storage Co. requested the Northwest Distilleries, Inc. and the plaintiff to remove all of its whiskey from said warehouse of the defendant and they did remove all the whiskey from said warehouse, excepting only the aforesaid nine barrels, which they failed and refused to remove. After the removal of the other whiskey which they had stored in said warehouse, they paid no further storage whatsoever on the said nine barrels.
'X. In September,
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