Home ELLSWORTH S. IRWIN vs. DOROTHY L. IRWIN.

327 Mass. 759

February 9, 1951

Exceptions overruled. Decree affirmed with costs. This is a suit in equity seeking to modify the terms of a written agreement entered into on March 20, 1939, by the parties, who were then husband and wife, and a third party as trustee. An interlocutory decree from which no appeal was taken was entered sustaining a demurrer filed by the defendant, and a final decree was entered dismissing the bill. After the demurrer was sustained the plaintiff filed a motion to amend his bill which was denied. This suit comes here on appeal from the final decree and an exception to the denial of the motion to amend. There is no error. Both the original bill and the proposed amendment in substance sought to modify the agreement by parol evidence. That this could not be done was decided in Freeman v. Sieve, 323 Mass. 625 , 654-655. See Schillander v. Schillander, 307 Mass. 96 .

Home FREDERICK H. RICHENBURG vs. METROPOLITAN TRANSIT AUTHORITY & another.

327 Mass. 759

March 7, 1951

Orders sustaining demurrers affirmed. Judgment for the defendants. The demurrers were rightly sustained. The declaration, with or without the amendment allowed in the court below, fails to state "with substantial certainty the substantive facts necessary to constitute the cause of action." G. L. (Ter. Ed.) c. 231, Section 7, Second; Section 18, Fourth. It is impossible by reading the declaration to ascertain with any precision what cause of action was intended to be set forth. Read v. Smith, 1 Allen 519 , 520-521. Davis v. H. S. & M. W. Snyder, Inc. 252 Mass. 29 , 34-35, 37. Grandchamp v. Costello, 289 Mass. 506 . Comerford v. Meier, 302 Mass. 398 . Bowles v. Clark, 326 Mass. 31 . A second motion to amend presented to this

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court is denied, partly because the proposed amendment would not cure the defects in the declaration.