131 Mass. 31 (Mass. 1881), Fay v. Guynon

Citation:131 Mass. 31
Opinion Judge:Lord, J.
Party Name:Ann Fay v. Mary Guynon
Attorney:L. Lapham, for the defendant. J. M. Morton, Jr., for the plaintiff.
Judge Panel:Lord, J. Colt & Field, JJ., absent.
Case Date:April 11, 1881
Court:Supreme Judicial Court of Massachusetts
 
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Page 31

131 Mass. 31 (Mass. 1881)

Ann Fay

v.

Mary Guynon

Supreme Court of Massachusetts

April 11, 1881

Argued October 29, 1879

Page 32

Bristol. Contract, brought for the benefit of Michael Guynon, for breach of an agreement contained in a deed of land. Writ dated February 17, 1879. By the deed, a copy of which was annexed to the declaration, the plaintiff, in consideration of one dollar, paid by Mary Guynon, wife of Michael Guynon, "and for the further consideration that the said Mary Guynon hereby agrees to furnish a home and support to her said husband when he is sober and well-behaved, not otherwise," quitclaimed to the defendant a parcel of land in Fall River. The answer denied that the plaintiff knew of, or authorized, the bringing of the action; averred that the defendant was not obliged to support and furnish a home to her husband, except upon the consideration that he should keep sober; and alleged that while he was so supplied with a home and support he repeatedly became drunk, and was convicted of the same and sent to the house of correction.

Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, which, after stating that the pleadings were a part thereof, proceeded in substance as follows:

Michael Guynon, the husband of the defendant, was called as a witness, and testified that he had a conversation with his wife, on or about November 12, 1878, about coming home; that his wife's sister was present, and might or might not have heard. On further examination the witness said he could not say that the sister was so that she heard the conversation. The defendant objected, that the conversation was not admissible, on the ground that it was a private conversation between husband and wife; but the judge overruled the objection and permitted the witness to testify to the conversation. The sister afterwards testified that she was present a part of the time, and heard a part of the conversation between Guynon and his wife about coming home.

The plaintiff did not contend that there had been any breach of the agreement prior to November 12, 1878; and stated that no claim was made for any damages prior to that date. The defendant offered to prove that since the delivery of the deed, January 21, 1875, and before November 12, 1878, Michael Guynon had been repeatedly drunk and convicted of drunkenness, and sentenced for the same, and had promised to behave well and keep sober, under which promise he was supported; but, instead of keeping his promise he constantly violated the same, and had also become drunk and intoxicated, and used violence against her, in consequence of which she was entitled to show his previous misconduct, upon the principle of condonation, he having since the bringing of the present action made himself drunk and assaulted her. It appeared from the evidence that Michael Guynon had come from the house of correction a few days before November 12, 1878. The judge declined to admit testimony as to the conduct of...

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