¶1concurring specially.
¶2I concur fully in the majority opinion but wish to emphasize certain points.
¶3The dissenting opinion in the case sub judice cites Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977), where the Supreme Court, in a 4-3 vote, affirmed Division 3 of our opinion in Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141) (1976), and held that there was a jury question as to fraud.
¶4In Wilhite the issue was very similar to that in the instant case. *646Both cases involved the purchase of a house and an underground object. In Wilhite the seller knew of an underground problem or defect of which the purchaser had no knowledge. This court held that the seller “surely knew that information concerning the defective condition would have significantly affected Mays’ [purchaser’s] decision.” We held there that the seller could not “simply keep his mouth shut” but had a duty to speak up.
¶5In the case under consideration, the purchaser had been told of the depth of the well, but not the distance from the well to the boundary line of the property purchased. In fact, he thought the well was within the boundary line of what he had purchased. Acknowledging that one cannot determine a horizontal length or distance by measuring the vertical depth of the well, the fact remains that the purchaser was expressly apprised by the seller or his agent of the depth of the well, but not of its location or its distance from the property purchased. The existing plat did not indicate the location of the well.
¶6A jury might find that the seller could surely know that the information concerning the length of the distance was no less important than the depth of the well, concerning which the buyer had affirmatively inquired. A jury could find that the seller had a duty to open his mouth and speak and was not justified in remaining silent where something so substantial as the location of vital water sources is concerned, and where the seller knew the well was outside the boundary line. In Wilhite, three judges on this court and four justices on the Supreme Court found a jury question as to the existence vel non of fraud. Our case sub judice is controlled by the latter case.