Johnson v. Shell Oil Co. of California , 185 Wash. 393 ( 1936 )

The sublease entered into by appellant on March 29, 1929, contained the covenant that he would buy gasoline at respondent's posted tank wagon price at its office at Everett. The provision (and, in fact, the sublease) is identical to that construed in the cases of Shell Oil Co. v. Wright, 167 Wash. 197,9 P.2d 106; Jewell v. Shell Oil Co., 172 Wash. 603, 21 P.2d 243;Robinson v. Shell Oil Co., 172 Wash. 611, 21 P.2d 246;Searl v. Shell Oil Co., 172 Wash. 621, 21 P.2d 249; andShell Oil Co. v. Henry, 175 Wash. 298, 27 P.2d 582, wherein this court held that the agreement was unambiguous and not subject to explanation by parol. In the Searl case, the court said:

"The writings evidencing the contract between the parties are plain, definite and unambiguous as to price. The testimony offered would have had the effect of modifying the terms of a written contract by parol evidence. It is fundamental that this can not be done."

But appellant says that this case differs from those, in that respondent made fraudulent representations which induced him to execute the sublease. What is this alleged fraudulent conduct? Merely that the appellant was busy at the time the sublease was presented to him for execution, that he did not read it, and that respondent's agent misrepresented to him the contents and purport of the instrument. There is no allegation or proof of any artifice used to procure appellant's signature. He was composmentis and able to read and understand the English language.

In a long line of decisions, this court has held that, under such circumstances, misrepresentation as to the contents or purport of an instrument does not constitute actionable fraud.Washington Central Imp. Co. v. Newlands, 11 Wash. 212,30 P. 366; Sherman v. Sweeny, 29 Wash. 321, 69 P. 1117; Hubenthalv. Spokane Inland R. Co., 43 Wash. 677, 86 P. 955; Golle v.State Bank of Wilson Creek, 52 Wash. 437, 100 P. 984;Fidelity Casualty Co. of New York v. Nichols, 124 Wash. 403,214 P. 820. In Johnston v. Spokane Inland Empire R. Co., 104 Wash. 562, 177 P. 810, the court said:

"We have always held that a party whose rights rest upon a written instrument which is plain and unambiguous, and who has read or had the opportunity to read the instrument, cannot claim to have been misled concerning its contents or to be ignorant of what is provided therein."

I therefore dissent from the conclusion reached by the majority.

MILLARD, C.J., MAIN, and STEINERT, JJ., concur with BLAKE, J.