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(- Ma88. -, 140 N. B. 73.) REPORT by the Superior Court for Franklin County (Lummus, J.) for determination by the Supreme Judicial Court, after dismissal, of a petition for annulment of a marriage. Affirmed.

The facts are stated in the opinion of the court.
Mr. Jacob Ogan for petitioner. which the law takes under its pro-

Counsel for respondent filed no tection. It is of such a nature that brief.

it cannot lightly be disregarded. De Courcy, J., delivered the opin- The contracting parties take each ion of the court:

other for better or for worse, and This is a libel for a sentence of agree to abide the consequences of nullity of marriage, on the ground misinformation or mistake in rethat the respondent was suffering gard to each other." from epilepsy at the time of the And in the basic case of Reynolds marriage, and fraudulently con- v. Reynolds, 3 Allen, 605, 607, Chief cealed that fact from the petitioner. Justice Bigelow used this language: The trial judge found that the par

"In the absence of force or duress, ties were married on August 8, 1920, and where there is no mistake as to after an acquaintance of about four the identity of the person, any error months; that the respondent knew or misapprehension as to personal she had long been suffering from traits or attributes, or concerning epilepsy, but told the petitioner the position or circumstances in life merely that some times, when over- of a party, is deemed wholly immaworked, she had fainting spells terial, and furnishes no good cause which were not serious; that the for divorce. Therefore, no misconmarriage was consummated by sex- ception as to the character, fortune, ual intercourse on various occasions health, or temper, however brought up to September 8, 1920; that she about, will support an allegation of had one or two attacks of the dis- fraud on which a dissolution of the ease during that period, but he marriage contract, when once exelearned the nature of her ailment cuted, can be obtained in a court of for the first time on said September justice. These are accidental quali8; that he then ceased to occupy the ties, which do not constitute the essame bed with her, and the parties sential and material elements on have lived apart since September 29, which the marriage relation rests. 1920. The judge further found, The law, in the exercise of a wise from medical testimony, that epi- and sound policy, seeks to render the lepsy is an incurable disease, and is contract of marriage, when once hereditary. He ordered the petition executed, as far as possible indisdismissed, being of opinion that it soluble. The great object of marcould not be granted under our law, riage in a civilized and Christian and reported the case. Counsel for community is to secure the existthe respondent filed no brief.

ence and permanence of the family By the law of this commonwealth relation, and to insure the legitimarriage is regarded as more than macy of offspring. It would tend

a civil contract. Husband and

to defeat this object, if error or diswife-marriage After cohabitation, appointment in personal qualities or as status.

at least, it ripens in- character was allowed to be the bato a status, which affects the parties sis of proceedings on which to found thereto, their posterity and the a dissolution of the marriage tie." whole community. As was said by To the same effect, see Wolkovisky Knowlton, J., in Smith v. Smith, 171 v. Rapaport, 216 Mass. 48, 50, 102 Mass. 404, 407, 41 L.R.A. 800, 68 N. E. 910, Ann. Cas. 1915A, 809, Am. St. Rep. 440, 50 N. E. 934: "It and Chipman v. Johnston, 237 Mass. is a change which, for important 502, 505, 14 A.L.R. 119, 130 N. E. reasons, the law recognizes, and it 65. inaugurates conditions and relations It is settled by our decisions that fraud, in order to avoid a marriage, held that concealment of the fact

must go to the es- that the woman had been insane -effect of fraud

sence of this con- previous to her marriage, she being on marriage.

tract. Concealment sane at the time of the marriage, by a woman of her previous unchas- did not constitute such a fraud as tity will not, ordinarily, render a entitled her husband to have the marriage invalid. Safford v. Saf- marriage dissolved, even though ford, 224 Mass. 392, L.R.A.1916F, subsequently she became incurably 526, 113 N. E. 181. And see Foss insane. Epilepsy was involved in v. Foss, 12 Allen, 26; Crehore v. McGill v. McGill, 179 App. Div. 343, Crehore, 97 Mass. 330, 93 Am. Dec. 166 N. Y. Supp. 397, and annulment 98. The same is true of the con- was refused, the court saying: cealed existence of syphilis in one of “The legislature has not prescribed the parties. Vondal v. Vondal, 175 epilepsy as a ground

-epilepsy as Mass. 383, 78 Am. St. Rep. 502, 56 for annulment of ground for N. E. 586. In Smith v. Smith, su- marriage, and

annulment.

SO pra, where there was no consumma- far as we know the courts of this tion, and the trial judge found that state have never recognized that disthe libellee was constitutionally af- ease as cause for nullifying the marAlicted with syphilis, "with which riage contract.” To the same effect the libellant would become infected are Elser v. Elser, 160 N. Y. Supp. in case of cohabitation,” and “the 724, and Lyon v. Lyon, 230 Ill. 366, disease would be transmitted to any 13 L.R.A.(N.S.) 996, 82 N. E. 850, offspring which they might have, 12 Ann. Cas. 25. See also Behsman it was held merely that on the facts v. Behsman, 144 Minn. 95, 7 A.L.R. the judge of the superior court had 1501, 174 N. W. 611. power to enter a decree for the li

As was said in Chipman v. Johnbellant. In the Reynolds Case false ston, 237 Mass. 505, 14 A.L.R. 119, representations of the woman that 130 N. E. 67, supra: “The strict she was chaste, when in fact she was

rule has been somewhat relaxed in pregnant by another man, were held

other jurisdictions, either by statute to go directly to the essentials of the marriage contract.

or by judicial decision. We are not aware of any case

is unnecessary to examine those dein this commonwealth where the cisions, because we are of opinion fraudulent concealment of a disease

that under principles heretofore deother than venereal has been consid- clared by this court the libellant can ered, on the question under con

be given no relief in this proceedsideration, except Cummington v. ing." Belchertown, 149 Mass. 223, 4 Order dismissing petition afL.R.A. 131, 21 N. E. 435. It was firmed.

It

.

ANNOTATION.

Epilepsy as ground for avoiding marriage.

The earlier cases discussing epilepsy appeared that the wife knew, prior to as a ground for avoiding a marriage her marriage, that she had for a long are collated in the annotation in 7 time been suffering from epilepsy, but A.L.R. 1503.

told the petitioner that sometimes, The reported case (RICHARDSON V. when overworked, she had fainting RICHARDSON, ante, 146) seems to be spells which were not serious. The the first case decided in Massachu- husband did not learn her true condisetts wherein the concealment of a tion until several weeks after the disease other than venereal has been marriage had been consummated. He considered as a ground for the annul- subsequently petitioned for an annulment of a marriage. In that case it ment of the marriage on the ground that she had fraudulently concealed from him the fact that she was afflicted with epilepsy. The court, however, held that concealment of that fact was not ground for annulment. The case falls within the classification made in the original annotation,

as one decided in the absence of a statute prohibiting marriage between persons either of whom is epileptic.

No other cases involving the point under discussion appear to have been decided since the original annotation.

H. C. J.

ANTHONY ASTE

V.
PUTNAM'S HOTEL COMPANY.

(Two Cases.)
Massachusetts Supreme Judicial Court - December 21, 1923.

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(- Mass. 141 N. E. 666.) Landlord and tenant covenant not to assign without consent effect

of consent. 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 con- to show agency. taining erroneous proposition.

4. In an action for interference by 2. The refusal of a ruling which the property owner with a leasehold, contains an erroneous proposition of

plaintiff may show that he installed law is not error, although the balance

the persons in possession and furof the request is sound.

nished them cash to pay rent, as tend

ing to show that they were his agents. [See 14 R. C. L. 801; 3 R. C. L. Supp. 290.]

Appeal erroneous admission of evi.

dence - nonprejudicial error. Evidence - conduct showing breach 5. If the jury has found the fact of of contract.

plaintiff's tenancy in an action against 3. In an action to hold a property rights under the lease, the admission

his landlord for interfering with his owner liable for breach of his lease,

of evidence tending to show that perevidence is admissible showing a

sons in possession were plaintiff's course of conduct, culminating in no- agents does not injuriously affect the tice to quit, which interferes with the rights of defendant. rights of the tenant.

[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. tain specified property as realty is Messrs. Charles W. Lavers and Rich- improper in form, in that it is, in part ard E. Jeffery, for plaintiff :

at least, an erroneous statement of the Defendant's request as to demand law, not necessarily to be inferred and that the court characterize cer- from the evidence, and might rightly

er.

have been refused because inconsist- De Courcy, J., delivered the opinent with a legitimate view of the evi- ion of the court: dence.

The plaintiff brought two actions, Bradley v. Meltzer, 245 Mass. 43, 139

and obtained a verdict in each. One N. E. 431; Gardiner v. Brookline, 181

was in tort, for the alleged converMass. 162, 63 N. E. 397; HosherPlatt Co. v. Miller, 238 Mass. 518, 131

sion of certain restaurant fixtures N. E. 310; Morrin v. Manning, 205

and furnishings, the property of the Mass. 205, 91 N. E. 308.

plaintiff. The defendant's only exThe transfer to the plaintiff was ception in that case was to the refusequitably a reassignment to the equi- al of the court to give a certain retable owners by purchase of the lease quested ruling, and this was waived from the original lessee.

at the argument. The second action McCormick v. Stowell, 138 Mass.

was in contract, for violation of the 431.

plaintiff's rights to quiet enjoyment Defendant's request as to meaning of expression “good will” was improp

of, and an alleged ouster from, cer

tain premises; the plaintiff claiming Gardiner V. Brookline, 181 Mass.

as assignee of a certain lease, ac162, 63 N. E. 397; Bradley v. Meltzer,

cording to the first count, and by 245 Mass. 43, 139 N. E. 431; Webster virtue of some sufficient contract of v. Webster, 180 Mass. 310, 62 N. E. tenancy according to the second 383; Moore v. Rawson, 199 Mass. 493, count. A recital of the facts, as the 85 N. E. 586; Von Bremen v. MacMon- jury could find them, is necessary, nies, 200 N. Y. 41, 32 L.R.A.(N.S.) before discussing the exceptions. 293, 93 N. E. 186, 21 Ann. Cas. 423; H. C. Girard Co. v. Lamoureux, 227

About April 5, 1920, the defendMass. 277, 116 N. E. 572; Essex Trust

ant sold out to the Napoli Cafeteria, Co. v. Enwright, 214 Mass. 507, 47

Incorporated, the fixtures and goL.R.A. (N.S.) 567, 102 N. E. 441; ing business of a restaurant at 266 Hutchinson v. Nay, 187 Mass. 262, 68 Huntington avenue, Boston, and L.R.A. 186, 105 Am. St. Rep. 390, 72 gave to it a lease of the restaurant N. E. 974; Old Corner Book Store v. premises and of the adjacent vacant Upham, 194 Mass. 101, 120 Am. St.

store, which store the Napoli CafeRep. 532, 80 N. E. 228; Hoxie v.

teria, Incorporated, equipped as a Chaney, 143 Mass. 592, 58 Am. Rep.

cafeteria. The lease was for a term 149, 10 N. E. 713; Foss v. Roby, 195 Mass. 292, 10 L.R.A.(N.S.) 1200, 81 N.

of ten years from April 12, 1920, at E. 199, 11 Ann. Cas. 571; Marshall En

a rental payable $300 monthly in gine Co. v. New Marshall Engine Co.

advance on the 12th of each month. 203 Mass. 410, 89 N. E. 548.

It contained a covenant that the lesWhen a transaction is competent, see “or others having its estate in declarations which are a part of, and the premises will not assign this which characterize, it, are competent lease

without the consent of as a part of the transaction.

the said lessor, or of those having O'Connell v. Cox, 179 Mass. 250, 60 N. E. 580; Brooks v. Duggan, 149

its estate in the premises, first being Mass. 304, 21 N. E. 381.

obtained in writing allowing thereSuit was necessarily brought in the

of;" with a right of entry reserved name of the plaintiff, the holder of the for a breach of the covenant. The legal title.

Napoli Cafeteria, Incorporated, enCampbell v. New England Mut. L. tered into the premises April 12, Ins. Co. 98 Mass. 381.

1920, installed numerous fixtures, Defendant interfered with the sale and made various improvements of the tangible assets, and entered up- suitable to the business to be conon the premises in such a way that its

ducted. On October 25, 1920, the acts amounted to an eviction. Skally V. Shute, 132 Mass. 367;

lease was assigned to the De AngeBrown v. Holyoke Water Power Co.

lis Company with the lessor's writ152 Mass. 463, 23 Am. St. Rep. 844, 25

ten consent. The De Angelis ComN. E. 966; Colburn v. Morrill, 117 pany assigned to one Samuel PresMass. 262, 19 Am. Rep. 415.

ent on February 5, 1921, the lessor's (- Ma88. -, 141 N. E. 666.) written consent being again ob- defendant's treasurer, Putnam, with tained. The same day Present exe- reference to the rent, the state of cuted to one Fopiano and Rosa Gio- the business, the possibility of selllitto a mortgage of the fixtures, fur- ing the restaurant and cafeteria, renishings, merchandise, and good will newing the lease, etc., at which there of the restaurant and cafeteria, were variously present Mr. and Mrs. which had been transferred to him Forfori, a real estate broker (one by a bill of sale dated January 29, Allen), the plaintiff, Aste, his attor1921 (not in evidence), from the De ney, Jeffery, and Putnam. These Angelis Company. On March 1, conferences reached no definite 1921, Fopiano assigned his rights in agreements, and on May 11, 1921, this mortgage to Mrs. Giolitto. the defendant gave the Forforis

Present paid the rent due Febru- written notice to vacate the premary 12, 1921, but paid none there- ises in or within thirty days after after, and ceased to be an active fac- May 12, 1921.

May 12, 1921. The reason given tor about three weeks after the as- was that the premises had been resignment of the lease to him. About let by the defendant to other perthe 6th of March, 1921, the Present sons. On May 14 a second notice mortgage was foreclosed, and at the was sent, giving fourteen days in sale the property covered by it was which to vacate, stating the same bid in by the plaintiff, apparently reason and also "for nonpayment of for Mrs. Giolitto, the mortgagee. the rent due and payable on May 12, The plaintiff at once placed Mr. and 1921.” May 24, 1921, an auction Mrs. Forfori in charge of the busi- sale was held to dispose of the furness. These persons had been about nishings and fixtures of the restauthe premises since the beginning in rant and cafeteria. Certain acts by various capacities. They had been the defendant at and about the time interested in the De Angelis Com- of this sale, together with said nopany; Mr. Forfori had been chef tices to quit, were declared on as during the present proprietorship, constituting interferences with the and they had run the business after plaintiff's rights as tenant. Present's retirement. Mrs. Forfori The verdict in the contract suit is the mother of the plaintiff. Mr. necessarily involved a finding that Forfori duly paid the March 12 rent the plaintiff was tenant of the premby check and received a receipt from ises at the time of the transactions the defendant, but the money was in question. The jury also returned in fact furnished by the plaintiff. a special finding that he was a tenAste (the plaintiff) bought out Mrs. ant at the time of the alleged conGiolitto, receiving a bill of sale dat- version. The correctness of these ed March 22, 1921, of all the person- findings is not open to review, on al property upon the premises, this record. . The principal excep"meaning and intending hereby to tion taken by the defendant was “to transfer and convey all rights of the ruling of the court that, where property and tenancy which I have consent had been in the premises." He gave back to given to one assign- tenant-cove

Landlord and her a general chattel mortgage of ment of the lease, nant not to the said personal property. There- no other consent consent-effect after the Forforis conducted the was necessary, and business, mainly in their own names,

that there was no necessity to get but actually in the plaintiff's behalf. written consent thereafter.” This

The April 12 rent was paid by ruling was right. Dumpor's Case, 4 Mrs. Forfori; $200 on the due date, Coke, 119b, 76 Eng. Reprint, 1110; and the balance later in the month. Brummell v. Macpherson, 14 Ves. The plaintiff furnished $150 of this. Jr. 173, 33 Eng. Reprint, 487; PenDuring April and May, 1921, there nock v. Lyons, 118 Mass. 92; Murwere various conversations with the ray v. Harway, 56 N. Y. 337; Reid

assign without

of consent.

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