v.S.H. Realty, Inc. v. Texaco, Inc.

757 F.2d 411 (1st Cir. 1985)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P offered to purchase from a used bulk storage petroleum facility for $2.8 million from Texaco (D). D accepted, and P made a deposit of $280,000. D was required to convey the property 'free and clear of all liens, encumbrances, tenancies, and restrictions,' except for those set forth in the offer. D had signed an acknowledgement stating that, to the best of the company's knowledge and belief, it had not received 'any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.' D did disclose that fuel oils had 'migrated under a garage building across the street from the terminal. P expressly stated in the offer that it had inspected the property and accepted it 'as is' without any representation on the part of D as to its condition. A month later, P visited the property and observed oil seeping from the ground at the western end of the property. During a subsequent visit, P discovered another oil seepage at the eastern end of the property. P notified D it would not go through with the purchase unless D corrected the oil problem, provided P with full indemnification, or reduced the purchase price. D refused. P demanded return of its down payment. D refused, and P sued D. P charges D with common law misrepresentation and deceit for failing to disclose the oil seepage problems and Coast Guard investigation 'in the face of repeated inquiries by P about the subject and also unfair trade practices for concealment under state law. P also asserted a breach of contract, based on D's alleged inability to convey the property at the specified time free of all liens, encumbrances, and restrictions. D moved to dismiss. The court dismissed the contract claim. It also dismissed the common law fraud count in that P had failed to allege the required affirmative misrepresentation or implicit misrepresentation by partial and ambiguous statements. It also dismissed the state deceptive business claim charge as well. P appealed.