1. We note first that, even if we were to regard as part of the record the unsupported statements made in the plaintiffs’ brief, there would be no showing of any abuse of discretion in the denial of two belatedly pressed motions to amend, one to add as a party plaintiff the corporation which the plaintiffs had formed to take over and run the restaurant business acquired in connection with the purchase of the above-mentioned real estate; and the other to amend the complaint to allege that the defendants had fraudulently misrepresented the income generated by that restaurant.
2. On the substantive issue, the judge rightly applied the principles set out in Mabardy v. McHugh, 202 Mass. 148 (1909). Park, Real Estate Law § 96 (2d ed. 1981). Although that case, now seventy-three years old, has been called into question by cases such as Worcester v. Cook, 220 Mass. 539, 542 (1915), and Yorke v. Taylor, 332 Mass. 368 (1955), and may have a patina of antiquity, it has not been overruled. On the facts of this case, where the misrepresentation was unintentional, it should not be. In any event, we regard the question whether such a precedent should be overruled as appropriate for answer by the Supreme Judicial Court on a suitable occasion. Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973).
Judgment affirmed.