I concur in the opinion of Justice ELLIS with the following modification: The bill did allege that the vendor represented that the Venetian Pool was within "two blocks" of the property sold.

The representation that work had already begun thereon was a misrepresentation as to a material fact, but as stated by Justice ELLIS, this was a matter open to ordinary observation, and the bill does not allege that the vendor did not have an opportunity to determine the falsity of it by inspection. This, coupled with the making of the payment a year later, and the delay of another year or more before bringing suit, does not make out a good case for rescission.

There are cases where a party is justified in relying on the vendor's representation as to existing physical facts without making an investigation for himself, where, for instance, he is designedly lulled into a sense of security by the fraudulently conceived wiles of the vendor, or where he cannot conveniently make such investigation by reason of the inaccessibility of the property. But this bill does not apparently make such a case. See on this subject Pomeroy Eq., Jurisp., Vol. 2, 4 ed. Sections 891-894.

But this proposition is considerably modified by section 895 of the cited work, wherein Pomeroy says that where a positive representation of fact within the knowledge of the vendor is made, the party receiving it is generally entitled to act upon it without making an independent investigation. The mere existence of the opportunity for examination, he says, is not sufficient. But this principle does not appear to have been accepted by our previous decisions, at least as regards physical facts, open to ordinary observation. *Page 807 Of course, as Pomeroy says, if the vendee does not rely upon the representation of the vendor, and starts his independent investigation, he must be held chargeable with all the facts that he could have learned had he pursued such investigation with reasonable thoroughness.

It may be that the vendee could set up some of the matters alleged in this bill as a partial defense, in a suit by thevendor against him, by way of set off, recoupment or counterclaim, but I hardly think the bill as drawn makes out a good ground for rescission and cancellation. See Smith v. Homeseekers Realty Co., 122 So. R. 708.

Since the complainants announced through their counsel that they did not desire to amend, the chancellor properly dismissed the bill.

STRUM, J., concurs.