Cushman v. Kirby

148 Vt. 571, 536 A.2d 550 (1987)



Where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the purchaser, the vendor of real estate is bound to disclose such facts and make them known to the purchaser. 


Plaintiff buyers entered into negotiations with the defendant sellers for the purchase of a single family home, and the buyers agreed to purchase the property. Two months later, the buyers brought an action for misrepresentation claiming that the sellers, during the course of negotiations, represented that there was good quality well water available on the land suitable for all household uses, when in fact the well water was not of good quality. A trial by jury resulted in a verdict in favor of the buyers, and the sellers appealed. Upon review, the court affirmed.


Did the withholding of material fact by the defendants amount to actionable fraud?




A directed verdict for defendants was not proper because the evidence made out an actionable case of fraud sufficient to carry the case to the jury. The court found that there was no prejudice from the trial court's submission of the case to the jury as an action against the defendants jointly, based on the fact that the sellers were in close proximity of each other during the critical interchanges of information between the parties. The court concluded that the trial court's instruction to the jury on damages was not erroneous, because the trial court properly expressed the measure of damages suffered by a defrauded party.

Click here to view the full text case and earn your Daily Research Points.