338 Mass. 794

January 30, 1959

Decree dismissing the bill affirmed with costs of the appeal to the defendants. This bill in equity was brought in December, 1956, by a purchaser of residential property in Arlington for the rescission of the conveyance made in January, 1955, on the ground that the sale was procured by the false and fraudulent representations of the sellers, principally that the house was in perfect or excellent condition, when in fact it was infested with termites. The judge in the Superior Court found that the representation in respect of the house, if made, was an expression of opinion, representing the honest belief of the defendants, and was "true in so far as they had any knowledge"; that other representations made were true; that the defendants never knew, suspected or had reason to suspect that there was any infestation of the house by termites; and that if, as indicated by the testimony of an expert but as to which the judge made no finding, the termites were there when the representation was made in November, 1954, it was a concealed situation, against which the sellers were off their guard and had no knowledge. The judge took a view. There was conflicting testimony, but, as the trial judge noted, such a case turns much on credibility, and there is no basis for our ruling that the findings are wrong on the reported evidence. The present posture of the case as well as the nature of the representations made speaks against the allowance of a motion by the plaintiff, now requested, to amend to add allegations of mutual mistake or innocent misrepresentation of a fact which was susceptible of knowledge as a known fact. Compare Golding v. 108 Longwood Ave. Inc.

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325 Mass. 465; Kabatchnick v. Hanover-Elm Bldg. Corp. 328 Mass. 341; Yorke v. Taylor, 332 Mass. 368; Bellefeuille v. Medeiros, 335 Mass. 262. See Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 679 (known termites, but no representation).