Fegeas v. Sherrill, 78

• Decision Date: 24 December 1958
• Docket Number: No. 78,78
• Citation: 147 A.2d 223,218 Md. 472
• Parties: Roger E. GEGEAS and Myrtle H. Fegeas, v. Fielding T. SHERRILL and Barbara K. Sherrill.
• Court: Maryland Court of Appeals

Page 472

218 Md. 472

147 A.2d 223

Roger E. GEGEAS and Myrtle H. Fegeas, v. Fielding T. SHERRILL and Barbara K. Sherrill.

No. 78.

Court of Appeals of Maryland.

Dec. 24, 1958.

John E. Oxley and David L. Cahoon, Rockville, for appellants.

Wm. Wilder Evans, Rockville, for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

Purchasers of a dwelling, some months after they had bought it in 1956, sought cancellation of the contract and deed or, in the alternative, damages equal to the cost of repairs to the dwelling from the ravages of termites. The chancellor sustained the demurrer to an amended bill without leave to amend further and this appeal resulted.

The bill alleged the execution of the contract of sale and the deed, payment of the purchase price partly in cash of the purchasers and partly with the proceeds from a purchase money mortgage to a lending institution, with the balance represented by a second lien to sellers; that sellers knew that purchasers were buying a home and assured them they 'could not go wrong'; that, in addition to the 'representations aforesaid', there was an implied warranty by sellers that the dwelling was fit for a home and that purchasers relied on the expressed and implied warranties aforesaid in purchasing the house. The bill goes on to allege that two months after purchasers moved in they discovered that the house was 'completely riddled with termites', that they had been compelled to remove some of the partitions (constructed of wooden 2" X 4"s covered with sheetrock), that the weakening of the wooden studdings and joists has made the house dangerous to live in, and that necessary repairs will cost $4,200.

It was further pleaded that sellers 'deliberately and intentionally concealed' from purchasers 'the true condition of said dwelling house'; that sellers (who had moved into the house in 1951) had 'prior to the negotiations between the parties' employed an exterminating company to rid the dwelling of termites; that there was no basement under the house and evidence of termites and damage did not appear and could not have been discovered by the inspection purchasers made; that sellers' superior knowledge of the actual conditions imposed on them not only a moral but a legal duty to make the facts known to purchasers; that agents of sellers had told purchasers that sellers did not want to sell to anyone who would finance with a G.I. or F.H.A. loan, and this was because the appraisal required in such cases would have led to the discovery of the true condition of the dwelling house; that at some time not specified, sellers had replaced baseboards and door frames and had painted the new installations 'so that an ordinary inspection * * * would not reveal the removal and replacement'; that purchasers had found in the house timbers in which were cavities caused by termites which had been filled with cement by sellers during their occupancy; and, finally, that purchasers have never before bought or owned a house and 'relied upon the integrity' of sellers.

Summarized, the allegations of the bill are that there were actual verbal misrepresentations, an implied warranty of fitness, and concealment and non-disclosure of material defects.

Taking these up seriatim, we think that the statement that purchasers 'could not go wrong' in buying the house was not a representation of fact on which a prospective buyer was entitled to rely. In Milkton v. French, 159 Md. 126, 132, 133, 150 A. 28, 32, the home buyer was told that he would be 'perfectly safe' in regard to the concrete in the house, its roof and the rest of its construction, and that he would 'never regret' the purchase. Judge Parke for the Court said of these quoted phrases: 'Nobody places trust in a representation based upon self-praise so general and comprehensive as to cover every detail of a subject matter, which common experience has established never attains that degree of perfection in all its numerous parts. The exaggeration of the statement is so plain that it cannot be supposed to have deceived any rational person. Everybody knows a new house, as an old one, is never perfect in construction * * *.'; and, a little later on, added: 'It is difficult to find these words, when reasonably considered, as capable of being understood by a man of average intelligence as a clear and definite representation of any particular fact. The language does not condescend to detail. The words used are so vague and general as to be incapable of particular application. They fail, therefore, to mount to a misrepresentation, and are but the indefinite generalities of exaggeration.' The words used by the sellers in the case before us are very similar to those just discussed and, like them, are not a clear and definite representation of any particular fact, do not condescend to detail, and are 'but the indefinite generalities of exaggeration'. In Urban v. Doolan, 282 Mich. 271, 276 N.W. 445, 446, the house sold was so badly infested with termites that the leg of the buyer's piano went through the floor. The seller had said that 'it was a very nice house' and 'a very good house'. In a suit for rescission after consummation of the sale, it was held that there was no misrepresentation of fact.

It is settled in Maryland, as in most jurisdictions, that there are no implied warranties in the sale of real estate. Berger v. Burkoff, 200 Md. 561, 566, 92 A.2d 376; Gilbert Construction Co., Inc., v. Gross, 212 Md. 402, 408, 129 A.2d 518.

Concealment and non-disclosure are closely related and in any given situation usually overlap. Restatment, Restitution, Sec. 8, comment b, says: 'Concealment is any statement or other conduct which prevents another from acquiring knowledge of a fact, such as diverting the attention of a prospective buyer from a defect which otherwise he would have observed. When done without intent to mislead and without misrepresentation, it has no effect except where there is a duty of disclosure.

'Non-disclosure is a failure to reveal facts. It may exist where there is neither representation nor concealment. Except in a few special types of...