Neil
W. Swinton v. Whitinsville Savings Bank
Supreme Judicial Court of Massachusetts
311 Mass. 677; 42 N.E.2d 808; 1942 Mass. LEXIS 769; 141 A.L.R. 965
March 4, 1942, Argued June 22, 1942, Decided
OPINIONBY: QUA
OPINION: 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 Casualty Co. 269 Mass. 75, 92, 168 N.E.
252.
If this defendant is liable on this declaration every seller is liable
who fails to disclose any nonapparent defect known to him in the
subject of the sale which materially reduces its value and which the
buyer fails to discover. Similarly it would seem that every buyer would
be liable who fails to disclose any nonapparent virtue known to him in
the subject of the purchase which materially enhances its value and of
which the seller is ignorant. See Goodwin v. Agassiz, 283 Mass. 358,
186 N.E. 659. The law has not yet, we believe, reached the point of
imposing upon the frailties of human nature a standard so
idealistic as this. That the particular case here stated by the
plaintiff possesses a certain appeal to the moral sense is scarcely to
be denied. Probably the reason is to be found in the facts that the
infestation of buildings by termites has not been common in
Massachusetts and constitutes a concealed risk against which buyers are
off their guard. But the law cannot provide special rules for termites
and can hardly attempt to determine liability according to the varying
probabilities of the existence and discovery of different possible
defects in the subjects of trade. The rule of nonliability for bare
nondisclosure has been stated and followed by this court in Matthews v.
Bliss, 22 Pick. 48, 52, 53, Potts v. Chapin, 133 Mass. 276, Van Houten
v. Morse, 162 Mass. 414, 38 N.E. 705, Phinney v. Friedman, 224 Mass.
531, 533, 113 N.E. 285, Windram Manuf. Co. v. Boston Blacking Co. 239
Mass. 123, 126, 131 N.E. 454, Wellington v. Rugg, 243 Mass. 30, 35, 36,
136 N.E. 831, and Brockton Olympia Realty Co. v. Lee, 266 Mass. 550,
561, 165 N.E. 873. It is adopted in the American Law Institute's
Restatement of Torts, § 551. See Williston on Contracts (Rev. ed.)
§§ 1497, 1498, 1499.
The order sustaining the demurrer is affirmed, and judgment is to be
entered for the defendant. Keljikian v. Star Brewing Co. 303 Mass. 53,
55-63, 20 N.E.2d 465.
So ordered.