Swinton v. Whitinsville Savings Bank

Brief Fact Summary. Defendant knowingly sold Plaintiff a house infested with termites without disclosing. Plaintiff sued Defendant for

Synopsis of Rule of Law. A seller is not required to disclose latent defects. The seller cannot purposefully hide a latent defect.

Facts. Swinton (Plaintiff) purchased a home from Whitinsville Savings Bank (Defendant). Plaintiff alleged that Defendant knew the home was infested with termites at the time of sale, and that Defendant had concealed this condition from Plaintiff. There was no allegation of any false statement or representation, or of the uttering of any half-truths, which may be tantamount to a falsehood. Defendant did not prevent Plaintiff from acquiring information about the house. There was no showing of a fiduciary relationship between the parties. The charge is for concealment and nothing more. The trial court returned a verdict for Defendant. Plaintiff appealed.

Issue. Is there an affirmative duty of a seller to disclose a known, non-apparent, material defect in the object of a sale when there has been no request to do so?

Held. No. Judgment affirmed.
* If Defendant is liable on this declaration then every seller is liable who fails to disclose any non-apparent defect know to him in the subject of the sale which materially reduces its value and which the buyer fails to discover. Similarly it would see, that every buyer would be liable who fails to disclose any non-apparent virtue know to him in the subject of the purchase which materially enhances its value and of which the seller is ignorant.

Discussion. Buyer beware. Plaintiff had ample opportunity to inspect the house before purchasing it. Defendant did nothing to purposefully hide the condition from Plaintiff. Because no false statements were made and no fiduciary relationship existed, Plaintiff should bear the loss.