329 Mass. 763

May 28, 1952

Exceptions overruled. In this action of contract to recover for legal services alleged to have been rendered to the defendant, the plaintiff had a verdict. There was evidence that the plaintiff performed legal services for the defendant at his request and had not been paid. The defendant excepted to the denial of his motion for a directed verdict. In support of this exception he argues that there was a variance between the declaration, which was on an account annexed, and the proof, which showed an express contract. This question is not open for the reason that the motion for a directed verdict was not based on the pleadings. Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 384-385. Melnick, petitioner, 324 Mass. 524, 529. But even if the point was properly raised it is lacking in merit. It is settled that under a declaration with an account annexed a plaintiff may recover money due under a special contract that has been fully performed. Egan v. Massachusetts Bonding & Ins. Co. 266 Mass. 270, 273. Biggs v. Densmore, 323 Mass. 106, 108. The exception to the charge is also without merit. It is true that the judge erroneously charged that the declaration contained two counts, one based on an express contract and one on quantum meruit, but he corrected this mistake when it was brought to his attention and the defendant was not harmed.


329 Mass. 763

May 29, 1952

Order denying jury issues affirmed. This is an appeal from an order of the Probate Court, in the matter of the alleged will of David J. Saltz, late of Haverhill, denying a motion by the contestant for the framing of issues for trial by a jury. The argument in behalf of the contestant is now directed only to the issue of undue influence. Upon consideration of the statements of expected evidence -- which need not be recited -- in the light of the established principles of law governing the framing of such issues and review on appeal after action of the Probate Court on motions for the framing of such issues -- which have been frequently stated and need not be restated -- including recognition of the element of discretion vested in the probate judge, we conclude that there was no error in the denial of this motion. See Hannon v. Gorman, 296 Mass. 437.


329 Mass. 763

July 1, 1952

Decree affirmed. Upon a decree granting a divorce to the wife the Probate Court ordered the husband to pay her $500 a month for the support of herself and of a daughter of the parties eight years of age. The wife appeals on the ground that the allowance should have been greater. The judge made findings of material facts, and the evidence is reported. Nothing would be gained by a detailed discussion of the facts or the evidence. The husband has securities

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amounting to about $291,000 besides an interest in real estate which has been producing an available annual income of about $7,500. The wife has property worth about $74,000. Neither party earns any money. When the effect of income taxes is taken into account, the amount allowed the wife for herself and child will apparently leave them with an income not far short of that left to the husband. Alimony is not based upon any theory of equal division of property or income, but is based upon the duty of the husband to provide his wife and children support which shall be suitable in the circumstances. Coe v. Coe, 313 Mass. 232, and cases cited. The manner of living of these parties before separation can hardly be taken as a standard, since they had been spending about $11,000 more than their combined incomes. In determining allowances for support much is left to the discretion of the trial judge who heard the testimony. Graves v. Graves, 108 Mass. 314, 317-318. Brown v. Brown, 222 Mass. 415, 417-418. Ziegler v. McKinlay, 318 Mass. 765, 766-767. Whitney v. Whitney, 325 Mass. 28, 30. This is true even though the basis for his action appears fully in the record on appeal. Long v. George, 296 Mass. 574, 579, and cases cited. Coe v. Coe, 313 Mass. 232, 235. We find no error.