Berkwitz v. Dunham

269 Mass. 65

• Court: Massachusetts Supreme Judicial Court
• Decided: October 9, 1929
• Status: Published

Opinion

By the Court.

This is an action of contract. The first count in the declaration alleges professional services as ■attorney at law rendered to the wife of the defendant to relieve her distress, to promote her comfort, to protect her from assaults and other mistreatment by the defendant, to compel him to refrain from abuse, appearing in different courts to that end, and in the prosecution of a separate support proceeding against the defendant.

There is no rigid test in this Commonwealth for the determination of the necessaries of a wife for which the husband may be held liable. So far as the allegations of this declaration are general and not specific, they do not merit judicial inquiry and are not admitted by the demurrer. Boston v. Treasurer & Receiver General, 237 Mass. 403, 415, and cases cited. Codman v. Dumaine, 249 Mass. 451, 459. So far as they are specific, they relate to services held not to be necessaries in Conant v. Burnham, 133 Mass. 503. Compensation for legal services rendered to the wife in proceedings for nonsupport is not subject for a separate action. Coffin v. Dunham, 8 Cush. 404. Relief for the wife in appropriate cases of that nature is provided by G. L. c. 208, § 17. The ■substance of the second count in the declaration is money expended for the benefit of the wife in connection with her real estate arising from breach of faith on the part of the •defendant. This sets out no cause of action. Skinner v. Tirrell, 159 Mass. 474.

In the circumstances of this case, where no count sets out a cause of action, there was no error in sustaining as to each count the demurrer although general in terms.

Whether on appropriate motion the plaintiff ought to be permitted to amend his declaration is for the determination of the Superior Court.

Order sustaining demurrer affirmed.