Swinton v. Whitinsville Savings Bank

Brief Fact Summary.

The defendant knowingly sold a house infested with termites to the plaintiff and failed to disclose this fact.

Synopsis of Rule of Law.

Mere nondisclosure cannot incur liability for misrepresentation.

Facts.

On September 12, 1938, the defendant sold the plaintiff a house in Newton to be occupied by the plaintiff and his family. At the time of the sale, the house was infested with termites, and the defendant knew as much. The plaintiff had no ability to readily observe this infestation upon inspection of the house, and the defendant did not share this information. The plaintiff learned of the infestation two years later, at which point the damage was severe and the plaintiff put to great expense for repairs.

Issue.

Is the defendant liable for the damage caused by the termites under a theory of misrepresentation?

Held.

No. The order sustaining the demurrer in favor of the defendant is affirmed.

Discussion.

This case involves no allegation of false statement—rather the case hinges on what the defendant failed to say altogether. The defendant did not prevent the plaintiff from acquiring the information about the termites. The plaintiff also did not have a relationship to the defendant that would imply a position of confidence. Concealment such as this is a mere failure to disclose non-apparent facts, and extending misrepresentation liability to cover concealment would go too far.