Swinton v. Whitinsville Sav. Bank

• Decision Date: 22 June 1942
• Citation: 311 Mass. 677,42 N.E.2d 808
• Parties: NEIL W. SWINTON v. WHITINSVILLE SAVINGS BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 677

42 N.E.2d 808

NEIL W. SWINTON v. WHITINSVILLE SAVINGS BANK.

Supreme Judicial Court of Massachusetts, Middlesex.

June 22, 1942

March 4, 1942.

Present: FIELD, C.

J., DONAHUE, QUA & RONAN, JJ.

Fraud. Sale Disclosure of defect, Of real estate.

Pleading, Civil Declaration.

A buyer of a dwelling house cannot maintain an action of tort against the seller in which he relies solely upon the facts that the seller, knowing the building to be infested with termites and the internal destruction they were creating therein, failed to reveal their presence to him.

Characterization in a declaration of conduct of the defendant as false and fraudulent was ineffective, on demurrer, if not supported by allegations of fact respecting such conduct.

TORT. Writ in the Superior Court dated November 10, 1941. A demurrer to the declaration was sustained by Swift, J. The plaintiff appealed.

J. E. Hannigan, (E.

M. McMahon with him,) for the plaintiff.

A. V. Harper, for the defendant.

QUA, J. The declaration alleges that on or about September 12, 1938, the defendant sold the plaintiff a house in Newton to be occupied by the plaintiff and his family as a dwelling; that at the time of the sale the house "was infested with termites an insect that is most dangerous and destructive to buildings"; that the defendant knew the house was so infested; that the plaintiff could not readily observe this condition upon inspection; that, "knowing the internal destruction that these insects were creating in said house," the defendant falsely and fraudulently concealed from the plaintiff its true condition; that the plaintiff at the time of his purchase had no knowledge of the termites, exercised due care thereafter, and learned of them about August 30, 1940; and that, because of the destruction that was being done and the dangerous condition that was being created by the termites, the plaintiff was put to great expense for repairs and for the installation of termite control in order to prevent the loss and destruction of said house.

There is no allegation of any false statement or representation, or of the uttering of a half truth which may be tantamount to a falsehood. There is no intimation that the defendant by any means prevented the plaintiff from acquiring information as to the condition of the house. There is nothing to show any fiduciary relation between the parties, or that the plaintiff stood in a position of confidence toward or dependence upon the defendant. So far as appears the parties made a business deal at arm's length. The charge is concealment and nothing more; and it is concealment in the simple sense of mere failure to reveal, with nothing to show any peculiar duty to speak. The characterization of the concealment as false and fraudulent of course adds nothing in the absence of further allegations of fact. Province Securities Corp. v Maryland...