Fay v. Guynon

• Decision Date: 11 April 1881
• Citation: 131 Mass. 31
• Parties: Ann Fay v. Mary Guynon
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 31

Ann Fay v. Mary Guynon

Supreme Court of Massachusetts

April 11, 1881

Argued October 29, 1879

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 the husband prior to November 12, 1878, but allowed the introduction of evidence as to his conduct since that date.

Ann Fay, the nominal plaintiff, testified on behalf of the defendant that the action was brought without any authority from her and against her will or consent, and that she did not wish it prosecuted. The defendant requested the judge to rule, that the action, having been commenced without the knowledge or consent of the plaintiff, Ann Fay, and against her will, could not be maintained; that when Michael Guynon came to the defendant, on November 12, 1878, from the house of correction, she was justified in refusing him support; and that the damages could not be estimated in any event beyond the date of the writ.

The judge declined so to rule, but instructed the jury that Michael Guynon could bring the suit in the name of Fay without her consent; that, if Michael Guynon was sober and well-behaved when he came to the defendant, on November 12, 1878, it made no difference whether he came from the house of correction or not; and that, if the jury found for the plaintiff, the damages should be assessed to the date of the verdict.

The jury returned a verdict for the plaintiff in the sum of $ 176.75; and the defendant alleged exceptions.

Exceptions sustained for the Assessment of damages only.

L. Lapham, for the defendant.

J. M. Morton, Jr., for the plaintiff.

Lord J. Colt & Field, JJ., absent.

OPINION

Lord, J.

It is not contended in this case that, at the time of the commencement of the action, there was not a subsisting contract between the parties which the plaintiff might lawfully enforce by suit. The contract was, indeed, for the benefit of a third person; but no objection is made that the suit is not properly brought in the name of the plaintiff, for the benefit of the party in interest. Four objections have been made in relation to the conduct of the suit, and have been argued before us; and these are the only questions upon which it is our duty to pass.

The first objection relates to the admission of evidence of a conversation between the defendant and her husband, upon the ground that private conversations between husband and wife are not admissible in evidence. Nothing is given showing the character of the conversation, but it does appear that a third person was present while the conversation was going on, and heard part of it. But whether she heard the entire conversation, or only portions of it, is not important, because the conversation under such circumstances is not within the prohibition of the St. of 1870, c. 393, § 1, cl. 1.

The next objection of the defendant is that the judge should have instructed the jury that if, after the...