## Facts

- A savings bank sold Neil W. Swinton a house in Newton, Massachusetts, for use as a family dwelling.
- Swinton alleged the house was infested with termites at the time of sale and that the bank knew of the infestation and the internal destruction it was causing.
- Swinton alleged the termite condition was not readily observable upon inspection and that he discovered it about two years after purchase.
- Swinton alleged he incurred substantial expenses for repairs and termite control to prevent further damage.
- The pleading did not allege any affirmative misrepresentation, partial disclosure creating a misleading impression, obstruction of Swinton’s ability to investigate, or any fiduciary or special relationship; the transaction was alleged as an arm’s-length business deal.

## Issues

1. Whether a homebuyer states a tort claim for fraudulent concealment when the seller, in an arm’s-length sale, knows of a serious latent defect but merely fails to disclose it without any misstatement, half-truth, or special duty to speak.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed the order sustaining the defendant’s demurrer.
- The court held that the declaration did not state actionable fraud because it alleged only nondisclosure of a latent defect, without facts establishing a duty to disclose or affirmative deceptive conduct.

## Legal Principles

- In an arm’s-length sale, mere silence about a known latent defect does not constitute fraud absent an independent duty to speak.
- Conclusory labels such as “false and fraudulent” do not cure a complaint that lacks factual allegations of misrepresentation, misleading partial disclosure, active concealment, or a special relationship creating a disclosure duty.
- Actionable deceit generally requires an affirmative false statement, a half-truth that is misleading, concealment involving affirmative conduct, or interference with the other party’s ability to learn the truth.

## Conclusion

The court rejected a fraud claim based solely on a seller’s failure to disclose a known termite infestation in an arm’s-length home sale, reaffirming that nondisclosure alone does not create tort liability without misrepresentation or a legally recognized duty to disclose.


Swinton v. Whitinsville Sav. Bank, 311 Mass. 677 (1942)