Opinion
December 29, 1976.
Carl J. Antonellis, Jr., for the defendants.
Daniel M. Kelly for the plaintiff.
1. As the defendants admit in their brief the Hart testimony was sufficient to warrant the judge's ultimate finding that the lot in question was not suitable for residential construction when the contract and the deed were executed. The judge's preference for that testimony over the testimony of Wilson is explained by the judge's subsidiary finding (amply warranted by the evidence) that Wilson "did not . . . make any of the other determinations as to soil conditions which would be necessary for the design of a satisfactory sewage disposal system on the lot." 2. Such lacunae as existed in the formal proof on the questions of (a) the cost and effect of fill and (b) the necessity for and effect of stripping trees and brush could be and were filled by the judge's exercise of his common sense. 3. So far as the law is concerned, the case was properly decided on the ground and for the reasons stated in the judge's findings, rulings and order for judgment. The judgment is to be modified so as to contain an actual order for rescission and, as so modified, is affirmed.
So ordered.