Freeman v. Sieve
| Decision Date | 04 February 1949 |
| Citation | 323 Mass. 652,84 N.E.2d 16 |
| Parties | ELLIS FREEMAN, trustee, v. BENJAMIN F. SIEVE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 1, 1948.
Present: QUA, C.
J., RONAN, WILKINS SPALDING, & WILLIAMS, JJ.
Evidence, Extrinsic affecting writing. Contract, Separation agreement Construction. Marriage and Divorce, Separation agreement. Practice, Civil, Ordering verdict.
A certain lengthy and detailed written separation agreement entered into by husband and wife through trustees showed on its face that it was intended to be complete, and unambiguous terms therein providing without qualification for payments by the husband in certain amounts for the support of the wife and of minor children of the parties could not be varied by an oral agreement, made by the parties contemporaneously with the execution of the written agreement, that they would abide by a decision of the Probate Court respecting the amount to be paid by the husband in the event of subsequent changes in their circumstances.
A decree of divorce making provision for payments by the husband for the support of the wife and of minor children of the parties was not intended to supersede or terminate a like provision in a certain separation agreement entered into by the parties through trustees in contemplation of the divorce proceeding even though the agreement stated that such provision should be included in a decree of divorce, if obtained, and there was no express statement in the agreement that it should not be affected by such a decree.
The enforceability of a provision of a separation agreement entered into by husband and wife through trustees in contemplation of a divorce proceeding, requiring stated payments by the husband for the support of the wife and of minor children of the parties and not superseded nor terminated by the inclusion of a like provision in a decree of divorce, was not affected by a later modification of the provision in the decree on petition by the former husband.
A verdict properly was ordered for the plaintiff in an action based on a written contract where, by an agreement of the parties as to the amount of damages if the plaintiff was entitled to recover and by proper exclusion of evidence offered by the defendant all questions of fact were eliminated, leaving the construction of the contract as the only issue, and the correct construction thereof supported the plaintiff's claim.
CONTRACT. Writ in the Superior Court dated July 26, 1945. The action was tried before Swift, J., who ordered a verdict for the plaintiff. The defendant alleged exceptions.
D. F. Sullivan, (F.
E. Silva, Jr., with him,) for the defendant.
R. W. Meserve, (J.
B. Poor with him,) for the plaintiff.
On September 1, 1937, the defendant Benjamin F. Sieve and Frieda F. Sieve, who were husband and wife and were then living apart, entered into a separation agreement through trustees. At the time the agreement was executed it was contemplated that proceedings for divorce were to be instituted shortly thereafter. On October 29, 1937, the Probate Court for Norfolk County entered a decree nisi (which became absolute six months later) on a libel for divorce brought by Mrs Sieve. Of the marriage two children (both of whom are now living and are minors) were born. Mrs. Sieve has subsequently remarried. Under the agreement the defendant was to pay to Mrs. Sieve "for the support of herself and of their two minor children . . . the sum of $4,000 per year," and payments of not less than $100 were to be made on the tenth, twentieth and thirtieth of each month.
The defendant paid to Mrs. Sieve the sums called for in the agreement until December 9, 1941, and since that time payments have been at the rate of $2,500 per year. This action of contract was brought by the plaintiff, as the succeeding trustee for Mrs. Sieve (now Mrs. Fastov) under the separation agreement, to recover the difference between what the defendant has paid and what he allegedly should have paid under the agreement. It was agreed at the trial that "the payments made by the defendant are less than the payments called for by the agreement by the precise amount of $4,401.28 if the agreement was in effect during the period in question, and that a finding for the plaintiff if one were to be made would be in the amount of $4,401.28 principal and $972.64 interest or a total of $5,373.92." No contention is made that the agreement was invalid when entered into. See Schillander v. Schillander, 307 Mass. 96 , 98, and cases cited.
At the close of the evidence both the plaintiff and the defendant presented motions for directed verdicts. The motion of the defendant was denied and the judge ordered a verdict for the plaintiff in the sum of $5,373.92. The questions for decision arise out of the defendant's exceptions to this action and to certain rulings on evidence.
The defendant testified that the separation agreement was signed during a conference at which all of the parties and their counsel were present. He was then asked if there was any conversation at this conference between him or his attorney and the lawyers representing Mrs. Sieve with reference to the time the agreement was to run. Upon objection by the plaintiff this question was excluded subject to the defendant's exception. The defendant in an offer of proof stated that he would testify that he asked "What is to happen if my wife remarried?" "What is to happen if I should take ill and be unable to earn?" and "What will happen if there are any other changes in my circumstances on the part of the agreement with reference to the $4,000 which it is specified I should pay?" and that Mrs. Sieve's attorney replied, The defendant would further testify that his attorney said to Mrs. Sieve's lawyer, "We will accept that." This evidence was rightly excluded. The agreement under consideration, which comprises five pages of the record, undertakes to define in considerable detail the rights and obligations of the parties. It was drafted by experienced attorneys and was...
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