The opinion
T. G. Kavanagh, J.
(dissenting). I agree that a duty to speak exists when there is knowledge of an existing condition posing a substantial threat to the enjoyment of the property. I would even agree that a deliberate withholding of the fact of a prior warning might be sufficient evidence of an intent to prevent investigation to support a determination of actionable fraud.
But here — did the appellant deliberately 'withhold information of the prior warning or did he even think about it? Is the present infestation a new one or did it exist at the time of the sale?
*26 There is no evidence in this record upon which to base logical answers to these questions. I would set aside the summary judgment and refer the matter for trial, and I would award appellant his costs.