Donnis G. Whorton v. Benjamin F. Dillingham, 202 Cal.App. 447 (1988)

CASE: Man sues defendant former companion after defendant barred him from the premises they shared.

FACTS: Plaintiff agreed to forgo completing his education in 1977 after agreeing (orally) to the following with the defendant: that plaintiff's exclusive, full-time occupation was to be defendant's chauffer, bodyguard, social and business secretary, partner and counselor in real estate investments and to appear on his behalf when requested. Plaintiff was to render labor, skills and personal services for the benefit of defendant's business and investment endeavors in addition to being defendant's constant companion and lover. In consideration, the defendant was to give plaintiff one-half equity interest in all real estate acquired in their joint names, and in all property thereafter acquired by the defendant. The defendant agreed to financially support the plaintiff for life and to open bank accounts, maintain a positive balance in those accounts, grant plaintiff invasionary powers to savings accounts held in defendant's name and permit plaintiff to charge on defendant's personal accounts. Defendant was to engage in a homosexual relationship with the plaintiff. The parties agreed that any portion of the agreement found to be legally unenforceable was severable and the balance of the provisions would remain in full force and effect. Plaintiff sued the defendant after the defendant barred him from the premises they shared togther in 1984 and refused to give him half of the property. The trial court dismissed the case on the pleadings, finding that the contract was unenforceable as expressly and inseparably based on sexual services. Plaintiff appealed.

COURT SAYS: Judgment reversed (finding for the plaintiff).

HOLDING: Trial court erred in holding legally unenforcable an agreement in which one party agreed to render labor, skills, personal services as well as companionship (including sex) to another because the agreement included consideration independent of sexual services.

RATIONALE:

• Previous courts have held that sexual consideration can be severed from the remaining consideration and that agreements of this sort can be enforced if consideration exists that is independent of sexual services.
• Poividing homemaking services is considered adequate consideration.
• Here, the sexual consideration and the other consideration (personal services) were severable and independent, so that the promise of sexual services did not render the agreement void.

COMMENTARY: This case, along with Marvin, seems to validate meretricious relationships so long as the parties include other consideration. What does it matter that the sexual services offered as consideration can be severed from the remaining consideration when the end result is the same: The courts will enforce the contract and even (under Marvin) provide equitable relief for the aggreived party. This seems to be implying that one could have a concubine who would provide sexual services so long as both agreed that the concubine would additionally do a bit of light housework or carpentry. Is this the result these cases mandate? Notably about both Marvin and Whorton is that both had an element of spurned love in them: both Michelle Marvin and Donnis Whorton sought to continue the relationship but were kicked out by more powerful partners with whom they had a rather paternal relationship (sexual services aside). I wonder if the courts would be so quick to enforce an agreement in which a woman agreed to be a sexual companion and a housekeeper to a man? Would the agreement be enforceable simply because she agreed to be a housekeeper (even though the two of them were engaging in activity that would get them arrested absent the housekeeping?)

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