317 Mass. 772 | Mass. | 1944
Decree affirmed. This is an appeal from a decree dismissing the libel of Marjorie Adee Babcock against her husband alleging cruel and abusive treatment. The evidence is not reported but the judge made a report of material facts found by him. G. L. (Ter. Ed.) c. 215, § 11. Assuming in favor of the libellant that the findings require the conclusion that in July, 1941, the libelled had been guilty of cruel and abusive treatment toward the libellant, they- show that that- conduct was condoned by the libellant, who continued to live with the libellee until September, 1941. While it is settled that condonation in such case is upon the condition that the spouse complained of will thereafter treat the other with conjugal kindness, and that breach of the condition may be shown by evidence which would not be sufficient to establish the principal charge, Gardner v. Gardner, 2 Gray, 434, 441-442; Smith v. Smith, 167 Mass. 87, 92; Steere v. Steere, 265 Mass. 317, 318, we are of opinion that the facts found by the judge with respect to the conduct of the libellee between July and September, 1941, when the libellant left him, do not support a conclusion that it was sufficient in character to be said to constitute a breach of the condition of condonation.'
