Kilburn v. Kilburn

De Haven, J. — Action for divorce. The court below approving and adopting the special verdict of the jury on this point, found that on May 23, 1886, the plaintiff and defendant entered into a contract of marriage, by which they agreed then and there to a present marriage, and that this contract was followed on their part by a mutual assumption of marital rights, duties, and obligations. The defendant, who is the appellant here, contends that the finding is not justified by the evidence.

It appears that the parties first met at a skating-rink in Salinas City in August, 1885. At their second meeting, which was about a week afterwards, this acquaint[48]anee ripened into an act of illicit intercourse, followed by other similar acts at opportune times, and, as a fruit of this relation, the plaintiff gave birth to a child on May 16, 1886. One week thereafter, defendant went to see plaintiff at the residence of her sister, where she was stopping. Here the plaintiff met defendant in the parlor, alone, and at this meeting the plaintiff testifies that she and defendant agreed upon a present marriage, and that it was to be kept secret in Salinas City, but not elsewhere, and the baby was to be named after him. As stated, no witnesses were present; but plaintiff's mother and sister each testifies that she came into the parlor afterwards, and that defendant then repeated to her the said agreement made with plaintiff, in reference to a present marriage, and also said that he wanted plaintiff to go into a neighboring county and live for a while, the mother to go with her. The mother also testified that she was authorized by defendant to introduce plaintiff as his wife, and she did so; “ only he wanted it kept quiet, so that it would not get back into the valley. He did n’t care about it elsewhere.” The plaintiff and her mother then went to the city of San José, and there remained until March following. During this period the defendant called to see her once, remaining from nine or ten o’clock in the morning until one o’clock in the afternoon. From the time of the alleged contract of marriage until the commencement of this action, the plaintiff and defendant never cohabited together, that is, lived together in the same house, although upon a few occasions they had sexual intercourse with each other; nor is there any evidence that they were generally reputed to be husband and wife in the community where both lived, and defendant never contributed but seventy dollars to the support of plaintiff and her child. There is nothing to show that if such relation existed, it was known to any one except the parties, and the mother and sister of plaintiff. It is true, the mother testifies that