Johnson v. Shell Oil Co. of California

• Decision Date: 21 December 1936
• Docket Number: 25872.
• Citation: Johnson v. Shell Oil Co. of California, 63 P.2d 483, 188 Wash. 704 (Wash. 1936)
• Parties: JOHNSON et al. v. SHELL OIL CO. OF CALIFORNIA et al.
• Court: Washington Supreme Court

63 P.2d 483

188 Wash. 704

JOHNSON et al. v. SHELL OIL CO. OF CALIFORNIA et al.

No. 25872.

Supreme Court of Washington, En Banc.

December 21, 1936

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

On rehearing.

For former opinion, see 185 Wash. 393, 55 P.2d 609.

Clarence J. Coleman, of Everett, and Vanderveer & Bassett, of Seattle for appellants.

Hyland Elvidge & Alvord, of Seattle, for respondents.

PER CURIAM.

Upon the rehearing en banc, a majority of the court adheres to the opinion heretofore filed herein, and reported in 185 Wash 393, 55 P.2d 609.

MILLARD Chief Justice (dissenting).

The majority opinion is opposed to a settled line of decisions in this state on a number of points. Certainty, clarity, and consistency demand that this court either definitely overrule those cases or indicate wherein they are distinguishable from the case at bar. This action is based on fraud in inducing the execution of a contract by misrepresentation. The majority opinion is to the effect that the misrepresentation is fraudulent and actionable because the contract is, as a matter of law, ambiguous, in spite of the fact that we have several times held that the same contract is, as a matter of law, unambiguous. The previous decisions are wrong and should be overruled if the present decision is correct.

Appellant Johnson testified that he was told that the sublease was not a new contract, and that he would get his rent at the time of delivery, instead of at the end of each month. He also testified, 'I was too busy to read it, and I just signed it.' It is a basic rule, which the majority disregards that the court will not act as a guardian or as a parent in a case such as is the one at bar. The reason advanced by the majority for its disregard of that rule is that the contract is ambiguous. I quote as follows: 'While it is elementary that one who signs a contract which he had every opportunity to read cannot be heard to say that he did not read the same ( Washington Central Imp. Co. v. Newlands, 11 Wash. 212, 39 P. 366; Tacoma v. Tacoma Light & Water Co., 16 Wash. 288, 47 P. 738; Zilke v. Woodley, 36 Wash. 84, 78 P. 299), this rule is not controlling here, as the contract was ambiguous and required explanation, and, in addition, appellant testified that his signature to the contract was secured by misrepresentation.' Johnson v. Shell Oil Co. of California, 185 Wash. 393, 401, 55 P.2d 609, 613.

The language of the sublease reads as follows: 'As a further consideration for this covenant and agreement, the sublessor promises and agrees at all times while this agreement shall be and remain in full force and effect to sell and deliver to the sublessee for resale from the demised premises gasoline at a price to sublessee not greater than the tank wagon price for commercial gasoline effective date of sale at Everett, Wash., said tank wagon price being no cents per gallon more than the sublessor's tank wagon price for commercial gasoline as determined and posted at sublessor's depot at Everett, Wash., including Washington State Motor Vehicle Fuel Tax. * * *'

Except for names of places, the sublease in Robinson v. Shell Oil Co., 172 Wash. 611, 21 P.2d 246, 247, was identical in language. the language of the sublease in that case reads as follows: 'As a further consideration for this covenant and agreement, the sublessor promises and agrees at all times while this agreement shall be and remain in full force and effect to sell and deliver to the sublessee for resale from the demised premises gasoline at a price to sublessee not greater than the tank wagon price for commercial gasoline effective date of sale at Sunnyside, Wash., said tank wagon price being no cents per gallon more (than) the sublessor's tank wagon price for commercial gasoline as determined and posted at sublessor's depot at Grandview, Wash., including Wash. State Motor Vehicle Fuel Tax.'

In that case we said, 'The contract was not ambiguous. The price fixed by the contract is plain, definite.'

In Searl v. Shell Oil Co., 172 Wash. 621, 21 P.2d 249, 250, the language of the sublease was as follows: 'As a further consideration for this covenant and agreement, the sublessor promises and agrees at all times while this agreement shall be and remain in full force and effect to sell and deliver to the sublessee for resale from the demised premises gasoline at a price to sublessee not greater than the tank wagon price for commercial gasoline effective date of sale at Castle Rock, Wash., said tank wagon price being no cents per gallon less (than) the sublessor's tank wagon price for commercial gasoline as determined and posted at sublessor's depot at Kelso, Wash., including Wash. State Motor Vehicle Tax.'

We there said: 'The writings evidencing the contract between the parties are plain, definite, and unambiguous as to price.'

In Shell Oil Co. v. Henry, 175 Wash. 298, 27 P.2d 582, the language of the sublease was as follows: 'As a further consideration for this covenant and agreement, the sublessor promises and agrees at all times while this agreement shall be and remain in full force and effect to sell and deliver to the sublessee for resale from the demised premises gasoline at a price to sublessee not greater than the tank wagon price for commercial gasoline effective date of sale at Toppenish, said tank wagon price being no cents per gallon more than the sublessor's tank wagon price for commercial gasoline as determined and posted at sublessor's depot at Toppenish, including State Motor Vehicle Fuel Tax.'

In Shell Oil Co. v. Henry, 175 Wash. 298, 27 P.2d 582, 583, in quoting from the Robinson Case, we again said: 'The contract was not ambiguous. The price fixed by the contract is plain, definite.' To the same effect are Shell Oil Co. v. Wright, 167 Wash. 197, 9 P.2d 106; Jewell v. Shell Oil Co., 172 Wash. 603, 21 P.2d 243; and Sheane Auto Co. v. Associated Oil Co., 181 Wash. 559, 44 P.2d 182. The language of the contracts in those cases and the language in the contract in the case at bar are the same; yet in the case at bar the majority opinion recites: 'The phrase 'tank wagon price' is a technical phrase requiring explanation. * * * The contract was ambiguous and required explanation. * * * This contract is in itself ambiguous.' Reference is made by the majority to Jones v. Standard Oil Co., 164 Wash. 83, 2 P.2d 76, 78, in support of the proposition that the language of the sublease in the case at bar is ambiguous. Jones v. Standard Oil Co., supra, is entirely different and was specifically distinguished in Searl v. Shell Oil Co., 172 Wash. 621, 21 P.2d 249. In Jones v. Standard Oil Co., supra, the language was, 'our posted service station or posted plant price.' The opinion in that case was written by the author of the majority opinion in the case at bar. It was there said: 'In our opinion, the agreement of January 10 is subject to oral explanation, in so far as it refers to appellant's 'posted service station or posted plant price.' This clause apparently refers to two different schedules. The parol testimony offered by respondent in explanation of his theory concerning this contract was clearly admissible.'

We held that oral testimony was admissible on the theory of ambiguity because the clause in question referred to two different schedules, which is not true in the case at bar. The contract in Jones v. Standard Oil Co., supra, and the contract in the case at bar are not alike.

In Searl v. Shell Oil Co., 172 Wash. 621, 21 P.2d 249, it was sought to introduce parol testimony to explain the contract. In that case we held that oral testimony was not admissible because the contract was not ambiguous and upon that ground distinguished Jones v. Standard Oil Co., supra. I agree with counsel for respondents that, if the Jones Case was unlike the Searl Case, certainly the Jones Case is unlike the case at bar, because the contract in the Searl Case was exactly like the contract in the case at bar, and that 'If a square peg will not fit in one circle it will not fit in any circle.' I also agree with counsel for respondents that this court must travel the road of ambiguity as now pointed out by the majority opinion and post a 'Road Ends' sign after the Wright, Henry, Searl, Robinson, and Jones Cases, or eventually retrace our steps and leave this decision for future explanation. The cases cannot be reconciled with the case at bar.

The majority opinion says: 'In addition appellant testified that his signature to the contract was secured by misrepresentation.' I cannot understand how inducement can have anything to do with construction. I do not understand what misrepresentation has to do with ambiguity. The following illustration of counsel for respondents is apt: A promissory note providing for payment of $500 in thirty days, plain and understandable in its terms, cannot be changed into an ambiguous instrument because the party procuring the signature to it represented that it was a deed to real property, or an assignment of a cause of action. While the misrepresentation may be a ground for setting aside the instrument in equity, it does not make ambiguous that which is plain and unambiguous. By the majority opinion we have declared the law to be that a contract secured through misrepresentation may be deemed ambiguous, where as the same contract procured without fraud may be deemed unambiguous. In the other cases cited above, there was no fraud procuring the signature to the sublease. In those cases we declared the language of the sublease was plain and unambiguous. In the case at bar the signature of appellant was procured allegedly by fraud. Therefore the language of the sublease is judicially declared to be ambiguous. A novel field of law...