The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-06-25
MARRIAGE BY CONTRACT.
Case in Which 1t Is Decided There
Was None In Law.

n
Was Mono In Law.
Judgment went for the defendant yester-
day in the Superior Court in the case of
Philisee MaeFarlane against Samuel II.
MacFarlane. superintendent of one Of the
telegraph offices. They were married in
Oakland IN March, .sssS BOT eivsTcad in
1888 in this city at his instance. A child
was born to them during said marriage. It
is now living with the mother, and is
years of age. The couple again married in
Oakland in October, 1890. and second child
was born to them. She then sued for main
tenance of herself and children.
The last marriage was under a contract
as follows:
OAKLAND, October 3. 1890
This is to certify that the undersigned, Mr. s.
81. MacFarlane and Mrs. PhilIsee MacFarIane.
Rglee TO live together as man and wife the rest
OF bis and her natural life, or until the law seps-
rates them eilher by contract. divorce or mutual
agreement.
Iu witness thereof we sign
S. Ii. MACFARLANE.
PHILISEE MACFARLANE.
Witnesses-Mrs M. A. Lewis, j. j, Mahon,
Mrs j. j. Mahon, G. Munger
The question presented to judge Levy
was whether this contract in itself, assum-
ing that it was followed by mutual assump-
ton of marital rights. duties and obligations,
constituted marriage. lie was considered
that the divorce Of 1888, although she con-
tinued to assume her married name, left
them in the eyes OF the law legally capable
OF entering into the contract of 1890 as il
they had never met before For the de-
PENDANT it was commended that the agree
ment does not disclose a consent to the
marriage, and that an agreement TO live
together as husband and wife is no more an
agreement Of marriage than is an offer
prove man and woman living together as
hFr Sh Nd nd al IN on off fe mr. mo
rage.
This construction of the contract, it Is
held, does not sustain the position, and
Judge Levy says that where there is an
agreement entered into as between parties
unless by force, duress or coercion, it is
naturally TO be presumed that consent is
given. The more serious question was then
whether, after signing the agreement they
assumed marital rights, duties and obliga-
tions, the testimony showing that before
the signing OF the contract and after divorce
they would meet at a certain lodg ing-nousP,
and from this intercourse the second child
was beg0tteD, but born after the signing Of
the contract.
1.-The signing of this contract" said the
Judge, throws around IL some suspicion In
reference to the manner in which the de-
PENDANT was induced to sign After the
parties had met, as they were in the habit OF
doing, and all had been imbibing lntoxieat-
ing liquors, the contract was signed in this
city and taken to Oakland and there re-
corded. Since the signing Of said contract,
and long previous thereto, the plaintiff In
this case has not acted in a manner which
would impress a court that she was married
by contract, minister or otherwise"
The Judge instaneed the habit of having
met men on q number of occasions and the
introduction Of letters written by her to
others than the one she claimed to be her
husband, but which the court refrained
from commenting upof. Since the signing
of the contract he had resided with his
mother, and has been known and recognize
by his relatives and companions as an
married man, and Judge Levy said ther
was not the slightest evidence before hIne
that they have, according to the code, As
sumed the duties and obligations Of hu>-
band aud wife.
THE provisions of the section OF the code
Of this State will always be strictly con
strued by this court. for when people select
this mode of becoming husband and wife
there ought not to be any secret Their
living together as husband and wife should
be as public as if the ceremony had been
performed by minister or Judicial Off
GER" said the e0nrt in conclusion.