Richards v. Richards

Decision Date29 January 1930
Citation169 N.E. 891,270 Mass. 113
PartiesRICHARDS v. RICHARDS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Suffolk County; Bishop, Judge.

Suit by Susie W. Richards against Edwin B. Richards to enforce specific performance of an agreement. From a decree for plaintiff, defendant appeals. Decree affirmed, with leave to plaintiff to move in superior court to amend the bill in respect to matters occurring since the entry of the final decree.

D. Ash, of Baltimore, for appellant.

F. L. Norton, of Boston, for appellee.

RUGG, C. J.

[1] This is a suit in equity. It is brought to enforce specific performance of an agreement alleged to have been executed at Albany in the state of New York between the parties, then and now husband and wife, both then there resident, the plaintiff still there residing and the defendant now a resident in this commonwealth. In brief the agreement, after reciting marital disputes and a compact to live separate and apart, contains stipulations respecting property rights of the spouses and amounts to be contributed by the defendant toward the support of the plaintiff. There are allegations of performance by the plaintiff of all parts of the agreement to be performed by her and of failure of performance on the part of the defendant, with specification of details, and a further averment that the ‘agreement was and is a valid, existing and binding agreement under the laws of the State of New York.’ The defendant demurred on the general ground that a cause for relief in equity was not stated in the bill. When the case was heard on the demurrer, the trial judge overruled the demurrer but filed a careful analysis of the statutory and case law of New York and reached the conclusion that the agreement set forth in the bill was valid under that law. Doubtles this course was followed by the trial judge on the theory that he was required in passing upon the demurrer, to consider and determine what was the law of New York by virtue of St. 1926, c. 168. That statute provides that courts shall take judicial notice of the law * * * of any state * * * whenever the same shall be material.’ That statute does not purport to make any change in the nature of the law of another state as to its evidentiary or legal substance. Such law may be set forth in a single statute or it may be deducible from numerous more or less conflicting decisions. Lennon v. Cohen (Mass.) 163 N. E. 63, and cases cited. See First Report of Judicial Council of Massachusetts, pages 36-39. If parties desire to put themselves in a position where the effect of the foreign law upon the rights of the parties is to be raised or settled by demurrer, that foreign law must be set forth with adequate particularity in the pleadings. Without such particularity of allegation in the bill, the defect in the plaintiff's case does not appear on the face of the bill. A demurrer deals only with defects appearing on the face of the bill. If resort must be had to extraneous matters to determine the issue, demurrer is not the appropriate pleading. It has been said that what are the laws of the state of New York ‘is of course a question of fact in this jurisdiction, and cannot be considered upon demurrer to a bill which contains no allegation as to the New York laws.’ Peters v. Equitable Life Assurance Society, 200 Mass. 579, 588, 86 N. E. 885, 887. In Keown v. Keown, 230 Mass. 313, 316, 119 N. E. 785, it was held that the law of a sister state should have been set out in the bill as a fact before being susceptible of consideration on demurrer. In Hanna v. Lichtenhein, 225 N. Y. 579, 582,122 N. E. 625, 627, occurs this: ‘No court is to be charged with the knowledge of foreign laws; but they are well understood to be facts, which must, like other facts, be proved before they can be received in a court of justice. * * * They are admitted by demurrer. * * * Foreign law is a question of fact, and must be proved as such.’ Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 445, 446, 9 S. Ct. 469, 32 L. Ed. 788;Nashua Savings Bank v. Anglo-American etc., Co., 189 U. S. 221, 228, 23 S. Ct. 517, 47 L. Ed. 782; 5 Wigmore on Evidence (2d Ed.) §§ 2549, 2558.

The present bill contains no specific allegation touching the character, sources, or details of the New York law. The averment already quoted was of the most general nature. There was no motion for further specifications as to this averment. The demurrer was of like general nature. There was enough in the averment to warrant a trial on the facts in the absence of any challenge of the adequacy of the statement as to the foreign law. The trial judge was right in overruling the demurrer; but his careful analysis of the law of New York was not required and was not germane to the issues raised. The order overruling the demurrer will be sustained although the course of procedure by which that result was reached is not approved. Randall v. Peerless Motor Car Co., 212 Mass. 352, 384, 99 N. E. 221;Reilly v. Selectmen of Blackstone (Mass.) 165 N. E. 660, and cases cited. Wong Doo v. United States, 265 U. S. 239, 241, 44 S. Ct. 524, 68 L. Ed. 999.

The defendant filed a demurrer and at the same time, without waiving the demurrer, filed an answer. This has become recognized practice. See O'Hare v. Downing, 130 Mass. 16, 20;Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 151, 128 N. E. 177.

The case then went to trial on the merits. The trial judge found that the facts set forth in the bill were true in substance; that the agreement was executed in good faith on or about August 29, 1927, at Albany, New York, as the parties were about to separate; that the defendant left the house where the parties had been living together on August 30, 1927, and the plaintiff left on September 5, 1927; that subsequent to the execution of the agreement and for a considerable time prior thereto there was no cohabitation between the parties, and that as to several matters the defendant had failed to comply with the agreement. There is no finding that the separation was induced by this agreement. He found also that ‘the agreement was and is a valid, existing and binding agreement under the laws of the State of New York where it was executed and where both parties lived and were domiciled at the time of its execution.’ A decree was entered granting money damages in favor of the plaintiff. The defendant appealed.

The case comes before us on appeal by the defendant from the final decree in favor of the plaintiff with what is certified to be a transcript of the evidence at the trial. There is nothing in that transcript concerning statutes or decisions of the state of New York. None seems to have been introduced in evidence. In such circumstances the ordinary rule is that the finding of the trial judge will not be reversed. It will be accepted as final. Boucher v. Hamilton Mfg. Co., 259 Mass. 259, 267, 268, 156 N. E. 424. If, however, it be assumed that the attention of the trial judge was directed to pertinent statutes and decisions by argument or otherwise, and that thus the question of foreign law was presented for his consideration, and that therefore under St. 1926, c. 168, the matter comes before us for review, the same result follows. No error is disclosed.

The validity of the agreement depends upon the law of the place where it was made. Carmen v. Higginson, 245 Mass. 511, 516, 140 N. E. 246. The finding that the agreement was valid under the law of New York was right. The pertinent statute of New York is Laws of 1909, c. 19, constituting chapter 14 of the Consolidated Laws, § 51, being the same in substance as Laws of 1896, c. 272, § 21, and is in these words: ‘A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person including her husband, * * * and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but a husband and wife can not contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.’ There seems to be no question under the New York law that, where a separation between the husband and wife has already sprung into existence and is not produced or occasioned by the contract, an agreement of this general nature is valid and enforcible. Pettit v. Pettit, 107 N. Y. 677, 679,14 N. E. 500;Galusha v. Galusha, 116 N. Y. 635, 642,22 N. E. 1114, 6 L. R. A. 487, 15 Am. St. Rep. 453. In Carson v. Murray, 3 Paige Ch. (N. Y.) 483, there was in litigation an agreement between husband and wife through the intervention of a trustee. After unhappy disputes had arisen between the spouses the agreement was executed to the effect that there be an immediate separation between them and payments be made by the husband to the wife in lieu of all other claims by her. ‘The separation took effect immediately, and the parties do not appear to have lived or cohabited together as husband and wife afterwards.’ Page 502 of 3 Paige Ch. (N. Y.). After a review of authorities, it was said by Chancellor Walworth: ‘According to those cases, agreements for separations cannot be supported, either at law or in equity, unless the separation has already taken place, or is to take place immediately upon the execution of the agreement. * * * Testing the agreement in this case by these principles, I cannot see that there is anything in the contract, as proved, to render it invalid. It appears to have been an agreement for an immediate separation.’ These words were quoted without criticism and with apparent approval in Winter v. Winter, 191 N. Y. 462, 472,84 N. E. 382,16 L. R. A. (N. S.) 710. Winter v. Winter was a case where the parties had been living apart before the agreement was executed and where the contract was...

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