Purdy v. Purdy

131 N.E. 297, 238 Mass. 506, 1921 Mass. LEXIS 1039

Opinion

Braley, J.

The only ground of divorce alleged is desertion by the libellee on or about April 20,1913, when the parties separated,they never have resumedzmarital relations. It is as the libellee contends familiar law, that where the separation is with the libellant’s consent there can be no desertion by the libellee. Foster v. Foster, 225 Mass. 183. The judge, however, not being bound to believe the husband's evidence, the only question is whether the letters between the parties when read together are sufficient as matter of law to bar the libel. The correspondence comprises a part only of the evidence, which considered as a whole warranted a finding that the libellee had deserted the libellant as charged, and that she never consented to his abandonment. The finding being conclusive, the court rightly refused to rule, that the libel should be dismissed, and that the letters written by the libellant to the libellee prove that the separation was with the libellant’s consent. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.

Exceptions overruled.