Dando v. West Wind Corp.

406 P.2d 927, 67 Wash. 2d 104, 1965 Wash. LEXIS 653
CourtWashington Supreme Court
DecidedOctober 14, 1965
DocketNo. 37475
StatusPublished
Cited by2 cases

This text of 406 P.2d 927 (Dando v. West Wind Corp.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dando v. West Wind Corp., 406 P.2d 927, 67 Wash. 2d 104, 1965 Wash. LEXIS 653 (Wash. 1965).

Opinion

Hamilton, J.

— This is an appeal from an order determining priority of claims in a receivership proceeding. Plaintiff (appellant) initiated the receivership action and pursues this appeal. The United States, as a creditor of the corporations in receivership, is the only respondent. The sole issue involved is whether appellant is entitled to priority over certain creditors, and particularly the United States.

The facts pertinent to the appeal may be summarized in the following manner: During 1959, West Wind Corporation, a Washington corporation, engaged in the manu[105]*105facture of electric fans and their components, found itself in difficult financial straits. In an effort to correct the problem, the corporation, on October 28, 1959, executed and delivered to appellant, a licensed public accountant, it's installment note and chattel mortgage in trust for the benefit of its general creditors. The chattel mortgage covered all of the corporate assets and was filed in the office of the King County Auditor on the date of its execution. Some payments were made upon the note and mortgage; however, the corporation defaulted and, on July 25, 1960, executed and delivered a bill of sale, in lieu of foreclosure, transferring to appellant all of its assets. Appellant was to sell the assets and apply the proceeds to the corporation’s obligations.

In the meantime, West Wind Manufacturing Corporation, a separate corporate entity, had been formed and agreed to purchase the assets of West Wind Corporation. To consummate this transaction, West Wind Manufacturing Corporation, on July 27, 1960, acknowledged and executed a note and chattel mortgage, covering the assets in the amount of the purchase, to appellant, as “Trustee for the benefit of the unsecured creditors of West Wind Corporation existing as of October 28,1959.” In turn, appellant, in his capacity as trustee, executed, on July 27, 1960, a bill of sale transferring the assets to the newly formed corporation.

The note and chattel mortgage of July 27, 1960, were not delivered to appellant until August 8, 1960, at which time the chattel mortgage, together with the bills of sale from West Wind Corporation and from appellant to West Wind Manufacturing Corporation were filed and recorded with the Auditor of King County.

West Wind Manufacturing Corporation fared little better than its predecessor. Tax, rent, and wage liabilities increased or were created. No payments were made on the mortgage.' Appellant sought another buyer and, on October 4, 1961, took from West Wind Manufacturing Corporation a bill of sale in lieu of foreclosure, which was on that date recorded with the King County Auditor. Fearing that he would be unable to convey clear title to a prospec[106]*106tive purchaser, appellant initiated the instant action against both corporations and a receiver was appointed.

By stipulation of appellant and all creditors, the receiver took possession of the assets and sold the same, the proceeds of which sale being held subject to the claims of appellant and the outstanding creditors, including the various taxing agencies, the wage claimants, and the landlord. Needless to say, the amount realized from the sale of the assets was insufficient to meet the varying demands.

At the hearing to determine priorities, appellant based his claim to the proceeds and to priority over all creditors, except King County which had issued a timely warrant of distraint for personal property taxes, upon the chattel mortgage of July 27, 1960, which had been filed with the auditor on August 8, 1960, and the ensuing bill of sale in lieu of forfeiture. Appellant’s claim was countered by the contention of the remaining creditors that the chattel mortgage was void as to them for the reason that it had not been filed within 10 days following its acknowledgment and execution, as required by RCW 61.04.020.1 To this contention, appellant responded that (1) the 10-day filing period provided by RCW 61.04.020 should properly commence to run from the date of delivery of the chattel mortgage rather than from the date of its acknowledgment and execution, and (2), in any event, the tenth day, being August 6, 1960, fell on a Saturday, a day when, pursuant to resolution of the Board of County Commissioners of King County, the county offices were closed, thus rendering valid the filing on the following Monday.

The trial court, relying upon Greenberg v. Manganese [107]*107Prod., Inc., 39 Wn.2d 794, 238 P.2d 1194 (1951), determined that the 10-day filing period commenced to rim from July 27, 1960, the date of acknowledgment and execution of the chattel mortgage. Having so decided, the trial court then, in reliance upon State ex rel. Earley v. Batchelor, 15 Wn.2d 149, 130 P.2d 72 (1942) and State ex rel. McQuesten v. Hinkle, 130 Wash. 525, 228 Pac. 299 (1924), concluded that Saturday was not a holiday within the contemplation of RCW 1.12.040 and that appellant had failed to file the chattel mortgage in question within the statutory 10-day period. The trial court thus held appellant’s chattel mortgage to be void as to other creditors and subordinate to their claims. On appeal, appellant challenges the rulings upon which the trial court invalidated the chattel mortgage. He waives any claim of priority which might be predicated upon the bill of sale in lieu of foreclosure.

Appellant frankly concedes that this court has determined, in Greenberg v. Manganese Prod., Inc., supra, that the 10-day filing period specified in RCW 61.04.020 for chattel mortgages commences to run from the date of the signing and acknowledgment of the instrument by the mortgagor, as distinguished from the date of its delivery to the mortgagee. He, however, strenuously urges that we overrule the Greenberg pronouncement, contending that the word “execution” as used in RCW 61.04.020 with reference to a chattel mortgage and its filing necessarily embraces delivery of the instrument.

We have carefully reviewed and considered appellant’s arguments, the statute involved, and our holding in the Greenberg case. We have determined that appellant’s invitation to overrule Greenberg must be declined.

The legislature, by Laws of 1965, Ex. Ses., ch. 157, has enacted substantial, if not all, portions of the Uniform Commercial Code. If this act goes into effect in its present form on its effective date of June 30, 1967, it will repeal RCW 61.04.020 and substitute, in lieu thereof, its own filing and priority provisions. To recede now from the Greenberg interpretation of RCW 61.04.020

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Bluebook (online)
406 P.2d 927, 67 Wash. 2d 104, 1965 Wash. LEXIS 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dando-v-west-wind-corp-wash-1965.