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(Mass., 140 N. E. 73.)

REPORT by the Superior Court for Franklin County (Lummus, J.) for determination by the Supreme Judicial Court, after dismissal, of a pe

tition for annulment of a marriage. Affirmed.

The facts are stated in the opinion of the court.
Mr. Jacob Ogan for petitioner.
Counsel for respondent filed no
brief.

De Courcy, J., delivered the opinion of the court:

This is a libel for a sentence of nullity of marriage, on the ground that the respondent was suffering from epilepsy at the time of the marriage, and fraudulently concealed that fact from the petitioner. The trial judge found that the parties were married on August 8, 1920, after an acquaintance of about four months; that the respondent knew she had long been suffering from epilepsy, but told the petitioner merely that some times, when overworked, she had fainting spells which were not serious; that the marriage was consummated by sexual intercourse on various occasions up to September 8, 1920; that she had one or two attacks of the disease during that period, but he learned the nature of her ailment for the first time on said September 8; that he then ceased to occupy the same bed with her, and the parties have lived apart since September 29, 1920. The judge further found, from medical testimony, that epilepsy is an incurable disease, and is hereditary. He ordered the petition dismissed, being of opinion that it could not be granted under our law, and reported the case. Counsel for the respondent filed no brief.

Husband and wife-marriage as status.

By the law of this commonwealth marriage is regarded as more than a civil contract. After cohabitation, at least, it ripens into a status, which affects the parties thereto, their posterity and the whole community. As was said by Knowlton, J., in Smith v. Smith, 171 Mass. 404, 407, 41 L.R.A. 800, 68 Am. St. Rep. 440, 50 N. E. 934: "It is a change which, for important reasons, the law recognizes, and it inaugurates conditions and relations

which the law takes under its protection. It is of such a nature that it cannot lightly be disregarded. The contracting parties take each other for better or for worse, and agree to abide the consequences of misinformation or mistake in regard to each other."

And in the basic case of Reynolds v. Reynolds, 3 Allen, 605, 607, Chief Justice Bigelow used this language: "In the absence of force or duress, and where there is no mistake as to the identity of the person, any error or misapprehension as to personal traits or attributes, or concerning the position or circumstances in life of a party, is deemed wholly immaterial, and furnishes no good cause for divorce. Therefore, no misconception as to the character, fortune, health, or temper, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice. These are accidental qualities, which do not constitute the essential and material elements on which the marriage relation rests. The law, in the exercise of a wise and sound policy, seeks to render the contract of marriage, when once executed, as far as possible indissoluble. The great object of marriage in a civilized and Christian community is to secure the existence and permanence of the family relation, and to insure the legitimacy of offspring. It would tend to defeat this object, if error or disappointment in personal qualities or character was allowed to be the basis of proceedings on which to found a dissolution of the marriage tie." To the same effect, see Wolkovisky v. Rapaport, 216 Mass. 48, 50, 102 N. E. 910, Ann. Cas. 1915A, 809, and Chipman v. Johnston, 237 Mass. 502, 505, 14 A.L.R. 119, 130 N. E. 65.

It is settled by our decisions that

-effect of fraud on marriage.

fraud, in order to avoid a marriage, must go to the essence of this contract. Concealment by a woman of her previous unchastity will not, ordinarily, render a marriage invalid. Safford v. Safford, 224 Mass. 392, L.R.A.1916F, 526, 113 N. E. 181. And see Foss v. Foss, 12 Allen, 26; Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98. The same is true of the concealed existence of syphilis in one of the parties. Vondal v. Vondal, 175 Mass. 383, 78 Am. St. Rep. 502, 56 N. E. 586. In Smith v. Smith, supra, where there was no consummation, and the trial judge found that the libellee was constitutionally afflicted with syphilis, "with which the libellant would become infected in case of cohabitation," and "the disease would be transmitted to any offspring which they might have," it was held merely that on the facts the judge of the superior court had power to enter a decree for the libellant. In the Reynolds Case false representations of the woman that she was chaste, when in fact she was pregnant by another man, were held to go directly to the essentials of the marriage contract.

marriage Safford v. Saf

We are not aware of any case in this commonwealth where the fraudulent concealment of a disease other than venereal has been considered, on the question under consideration, except Cummington v. Belchertown, 149 Mass. 223, 4 L.R.A. 131, 21 N. E. 435. It was

held that concealment of the fact
that the woman had been insane
previous to her marriage, she being
sane at the time of the marriage,
did not constitute such a fraud as
entitled her husband to have the
marriage dissolved, even though
subsequently she became incurably
insane. Epilepsy was involved in
McGill v. McGill, 179 App. Div. 343,
166 N. Y. Supp. 397, and annulment
refused, the court saying:
"The legislature has not prescribed
epilepsy as a ground -epilepsy as
for annulment of ground for
marriage, and SO

annulment.

far as we know the courts of this state have never recognized that disease as cause for nullifying the marriage contract." To the same effect are Elser v. Elser, 160 N. Y. Supp. 724, and Lyon v. Lyon, 230 Ill. 366, 13 L.R.A. (N.S.) 996, 82 N. E. 850, 12 Ann. Cas. 25. See also Behsman v. Behsman, 144 Minn. 95, 7 A.L.R. 1501, 174 N. W. 611.

As was said in Chipman v. Johnston, 237 Mass. 505, 14 A.L.R. 119, 130 N. E. 67, supra: "The strict rule has been somewhat relaxed in other jurisdictions, either by statute or by judicial decision.

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It

is unnecessary to examine those decisions, because we are of opinion that under principles heretofore declared by this court the libellant can be given no relief in this proceeding."

Order dismissing petition affirmed.

ANNOTATION.

Epilepsy as ground for avoiding marriage.

The earlier cases discussing epilepsy as a ground for avoiding a marriage are collated in the annotation in 7 A.L.R. 1503.

The reported case (RICHARDSON V. RICHARDSON, ante, 146) seems to be the first case decided in Massachusetts wherein the concealment of a disease other than venereal has been considered as a ground for the annulment of a marriage. In that case it

appeared that the wife knew, prior to her marriage, that she had for a long time been suffering from epilepsy, but told the petitioner that sometimes, when overworked, she had fainting spells which were not serious. The husband did not learn her true condition until several weeks after the marriage had been consummated. He subsequently petitioned for an annulment of the marriage on the ground

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Massachusetts Supreme Judicial Court — December 21, 1923.

Landlord and tenant

of consent.

Mass. 141 N. E. 666.)

covenant not to assign without consent

effect

1. A covenant not to assign a lease without consent of the lessor in writing is discharged by securing consent to one assignment, so that subsequent assignments may be made without consent, although it, in terms, bound the assigns of the lessee.

[See note on this question beginning on page 153.]

Appeal — refusal of instructions containing erroneous proposition.

2. The refusal of a ruling which contains an erroneous proposition of law is not error, although the balance of the request is sound.

[See 14 R. C. L. 801; 3 R. C. L. Supp. 290.]

Evidence-conduct showing breach of contract.

3. In an action to hold a property owner liable for breach of his lease, evidence is admissible showing a course of conduct, culminating in notice to quit, which interferes with the rights of the tenant.

- to show agency.

4. In an action for interference by the property owner with a leasehold, plaintiff may show that he installed the persons in possession and furnished them cash to pay rent, as tending to show that they were his agents. Appeal erroneous admission of evidence-nonprejudicial error.

5. If the jury has found the fact of plaintiff's tenancy in an action against his landlord for interfering with his rights under the lease, the admission of evidence tending to show that persons in possession were plaintiff's agents does not injuriously affect the rights of defendant.

[See 2 R. C. L. 251.]

EXCEPTIONS by defendant to rulings of the Superior Court for Suffolk County (King, J.) made during the trial of actions brought to recover for the alleged conversion of certain property and for violation of plaintiff's rights to quiet enjoyment of, and an alleged ouster from, certain premises, which resulted in verdicts for plaintiff. Overruled.

The facts are stated in the opinion of the court.
Mr. C. C. Barton, Jr., for defendant.
Messrs. Charles W. Lavers and Rich-
ard E. Jeffery, for plaintiff:

Defendant's request as to demand and that the court characterize cer

tain specified property as realty is improper in form, in that it is, in part at least, an erroneous statement of the law, not necessarily to be inferred from the evidence, and might rightly

have been refused because inconsistent with a legitimate view of the evidence.

Bradley v. Meltzer, 245 Mass. 43, 139 N. E. 431; Gardiner v. Brookline, 181 Mass. 162, 63 N. E. 397; HosherPlatt Co. v. Miller, 238 Mass. 518, 131 N. E. 310; Morrin v. Manning, 205 Mass. 205, 91 N. E. 308.

The transfer to the plaintiff was equitably a reassignment to the equitable owners by purchase of the lease from the original lessee.

McCormick v. Stowell, 138 Mass.

431.

Defendant's request as to meaning of expression "good will" was improp

er.

Gardiner v. Brookline, 181 Mass. 162, 63 N. E. 397; Bradley v. Meltzer, 245 Mass. 43, 139 N. E. 431; Webster v. Webster, 180 Mass. 310, 62 N. E. 383; Moore v. Rawson, 199 Mass. 493, 85 N. E. 586; Von Bremen v. MacMonnies, 200 N. Y. 41, 32 L.R.A. (N.S.) 293, 93 N. E. 186, 21 Ann. Cas. 423; H. C. Girard Co. v. Lamoureux, 227 Mass. 277, 116 N. E. 572; Essex Trust Co. v. Enwright, 214 Mass. 507, 47 L.R.A. (N.S.) 567, 102 N. E. 441; Hutchinson v. Nay, 187 Mass. 262, 68 L.R.A. 186, 105 Am. St. Rep. 390, 72 N. E. 974; Old Corner Book Store v. Upham, 194 Mass. 101, 120 Am. St. Rep. 532, 80 N. E. 228; Hoxie v. Chaney, 143 Mass. 592, 58 Am. Rep. 149, 10 N. E. 713; Foss v. Roby, 195 Mass. 292, 10 L.R.A. (N.S.) 1200, 81 N. E. 199, 11 Ann. Cas. 571; Marshall Engine Co. v. New Marshall Engine Co. 203 Mass. 410, 89 N. E. 548.

When a transaction is competent, declarations which are a part of, and which characterize, it, are competent as a part of the transaction.

O'Connell v. Cox, 179 Mass. 250, 60 N. E. 580; Brooks v. Duggan, 149 Mass. 304, 21 N. E. 381.

Suit was necessarily brought in the name of the plaintiff, the holder of the legal title.

Campbell v. New England Mut. L. Ins. Co. 98 Mass. 381.

Defendant interfered with the sale of the tangible assets, and entered upon the premises in such a way that its acts amounted to an eviction.

Skally v. Shute, 132 Mass. 367; Brown v. Holyoke Water Power Co. 152 Mass. 463, 23 Am. St. Rep. 844, 25 N. E. 966; Colburn v. Morrill, 117 Mass. 262, 19 Am. Rep. 415.

De Courcy, J., delivered the opinion of the court:

The plaintiff brought two actions, and obtained a verdict in each. One was in tort, for the alleged conversion of certain restaurant fixtures and furnishings, the property of the plaintiff. The defendant's only exception in that case was to the refusal of the court to give a certain requested ruling, and this was waived at the argument. The second action was in contract, for violation of the plaintiff's rights to quiet enjoyment of, and an alleged ouster from, certain premises; the plaintiff claiming as assignee of a certain lease, according to the first count, and by virtue of some sufficient contract of tenancy according to the second count. A recital of the facts, as the jury could find them, is necessary, before discussing the exceptions.

About April 5, 1920, the defendant sold out to the Napoli Cafeteria, Incorporated, the fixtures and going business of a restaurant at 266 Huntington avenue, Boston, and gave to it a lease of the restaurant premises and of the adjacent vacant store, which store the Napoli Cafeteria, Incorporated, equipped as a cafeteria. The lease was for a term of ten years from April 12, 1920, at a rental payable $300 monthly in advance on the 12th of each month. It contained a covenant that the lessee "or others having its estate in the premises will not assign this lease without the consent of the said lessor, or of those having its estate in the premises, first being obtained in writing allowing thereof;" with a right of entry reserved for a breach of the covenant. Napoli Cafeteria, Incorporated, entered into the premises April 12, 1920, installed numerous fixtures, and made various improvements suitable to the business to be conducted. On October 25, 1920, the lease was assigned to the De Angelis Company with the lessor's written consent. The De Angelis Company assigned to one Samuel Present on February 5, 1921, the lessor's

The

(— Mass. —, 141 N. E. 666.)

written consent being again obtained. The same day Present executed to one Fopiano and Rosa Giolitto a mortgage of the fixtures, furnishings, merchandise, and good will of the restaurant and cafeteria, which had been transferred to him by a bill of sale dated January 29, 1921 (not in evidence), from the De Angelis Company. On March 1, 1921, Fopiano assigned his rights in this mortgage to Mrs. Giolitto.

Present paid the rent due February 12, 1921, but paid none thereafter, and ceased to be an active factor about three weeks after the assignment of the lease to him. About the 6th of March, 1921, the Present mortgage was foreclosed, and at the sale the property covered by it was bid in by the plaintiff, apparently for Mrs. Giolitto, the mortgagee. The plaintiff at once placed Mr. and Mrs. Forfori in charge of the business. These persons had been about the premises since the beginning in various capacities. They had been interested in the De Angelis Company; Mr. Forfori had been chef during the present proprietorship, and they had run the business after Present's retirement. Mrs. Forfori is the mother of the plaintiff. Mr. Forfori duly paid the March 12 rent by check and received a receipt from the defendant, but the money was in fact furnished by the plaintiff. Aste (the plaintiff) bought out Mrs. Giolitto, receiving a bill of sale dated March 22, 1921, of all the personal property upon the premises, "meaning and intending hereby to transfer and convey all rights of property and tenancy which I have in the premises." He gave back to her a general chattel mortgage of the said personal property. Thereafter the Forforis conducted the business, mainly in their own names, but actually in the plaintiff's behalf.

The April 12 rent was paid by Mrs. Forfori; $200 on the due date, and the balance later in the month. The plaintiff furnished $150 of this. During April and May, 1921, there were various conversations with the

defendant's treasurer, Putnam, with reference to the rent, the state of the business, the possibility of selling the restaurant and cafeteria, renewing the lease, etc., at which there were variously present Mr. and Mrs. Forfori, a real estate broker (one Allen), the plaintiff, Aste, his attorney, Jeffery, and Putnam. These conferences reached no definite agreements, and on May 11, 1921, the defendant gave the Forforis written notice to vacate the premises in or within thirty days after May 12, 1921. The reason given was that the premises had been relet by the defendant to other persons. On May 14 a second notice was sent, giving fourteen days in which to vacate, stating the same reason and also "for nonpayment of the rent due and payable on May 12, 1921." May 24, 1921, an auction sale was held to dispose of the furnishings and fixtures of the restaurant and cafeteria. Certain acts by the defendant at and about the time of this sale, together with said notices to quit, were declared on as constituting interferences with the plaintiff's rights as tenant.

The verdict in the contract suit necessarily involved a finding that the plaintiff was tenant of the premises at the time of the transactions in question. The jury also returned a special finding that he was a tenant at the time of the alleged conversion. The correctness of these findings is not open to review, on this record. The principal exception taken by the defendant was "to the ruling of the court that, where consent had been

Landlord and

assign without

of consent.

given to one assign- tenant-covement of the lease, nant not to no other consent consent-effect was necessary, and that there was no necessity to get written consent thereafter." This ruling was right. Dumpor's Case, 4 Coke, 119b, 76 Eng. Reprint, 1110; Brummell v. Macpherson, 14 Ves. Jr. 173, 33 Eng. Reprint, 487; Pennock v. Lyons, 118 Mass. 92; Murray v. Harway, 56 N. Y. 337; Reid

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