Swinton v. Whitinsville Savings Bank


–          Plaintiff bought house in Newton on Sept 12, at time of the sale it was infested with termites, and that the defendant knew the house had termites in it.

–          The plaintiff had no knowledge of the termites when bought the house, and learned of the termites 2 years later, August 30th, 1940, and took due care to get rid of them.

  • Had to spend a lot of money to take care of the problem.

–          Court

  • There is no fraud or miss-representation here.
  • Defendant did not prevent the plaintiff from checking the house.
  • No fiduciary relationships or one that was over-bearing on behalf of the bank.
  • Made business deal at arm’s length.
  • Simply concealment.
    • Mere failure to reveal, with nothing to show of any duty to speak.


–          Should the bank be responsible for concealment even though deal was done at arms length?


–          No.


–          More of a policy issue. If all sellers are liable for un-disclosed information during an arms length transaction, nothing would ever get done – just because some is plainly ignorant is not enough to get in trouble.


–          If the defendant is liable on this account, every seller is liable who fails to disclose any non-apparent defect known to him in the subject of the sale which materially reduces its value and which the buyer fails to discover.

–          Even though it appeals to the moral sense, it will not be good for business on the whole.

  • In Mass. Termites are not normal so there is a concealed risk involved
    • But law cannot provide special rules for termites and it would be impossible to measure damages and liability.
      • How would you measure the damages? In money, specific performance? Pretty hard for the courts to do…


–          Judgment entered for the defendant.

Comments are closed.