Home VERA RUTH PURPLE vs. GEORGE F. PURPLE.

354 Mass. 770

June 12, 1968

The plaintiff seeks to enjoin her husband, the defendant, from disposing of the proceeds received by him from the taking by eminent domain of premises owned by them as tenants by the entirety, and to have the proceeds held under court order subject to the incidents of that tenancy. The final decree, so far as material, provided that the funds be deposited in the names of the husband and wife as tenants by the entirety, the interest during their joint lives to be paid to the husband, and the principal to be paid to the survivor; and provided further that upon dissolution of the marriage by divorce absolute, each was to receive one half of the net fund. The husband contests only the latter provision of the decree. There was no error. It appears from the bill and answer that the parties had lived apart since 1948. A divorce was not inconceivable. The final decree was within the scope of the pleadings, correctly applied the law in settling the rights of the parties and left nothing for future determination. New England Factors, Inc. v. Genstil, 322 Mass. 36 , 45. Frank v. Frank, 335 Mass. 130 , 135. McPherson v. McPherson, 337 Mass. 611 , 613-614. Ronan v. Ronan, 339 Mass. 460 , 463, and cases cited. Goldman v. Finkel, 341 Mass. 492 , 493-494.

Decree affirmed with costs of appeal.

Home JOSEPH L. MURPHY vs. HELEN O'ROURKE.

354 Mass. 770

June 12, 1968

In this action of contract in two counts, both for the same cause of action (a real estate broker's commission), the judge directed verdicts for the defendant. Count 1 alleged an express contract; count 2 was in quantum meruit. There was no error in directing the verdict on the opening in count 2. The allegation was that the plaintiff undertook to sell the defendant's property whereas the opening showed that no sale had been effected and that no binding agreement to sell had been made. Simon v. Lettiere, 257 Mass. 563 , 570. See Cheng v. Chin Wai Yip, 339 Mass. 173 , 175. Burns v. Barry, 353 Mass. 115 , 117. On count 1 the verdict was directed when the plaintiff offered no evidence following the exclusion of testimony of an attorney called as a witness by the plaintiff regarding a conversation between the attorney and the defendant. The

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plaintiff's offer of proof on the excluded question was not a delineation of an answer which the witness was competent to make but rather was a statement framed in the language of count 1 giving the legal effect of the conversation. See Foley v. Hotel Touraine Co. 326 Mass. 742 , 745. It is unnecessary to discuss whether the excluded matter was within the attorney-client privilege.

Exceptions overruled.