Suggs v. Norris, 8713SC540

• Decision Date: 02 February 1988
• Docket Number: No. 8713SC540,8713SC540
• Citation: 364 S.E.2d 159,88 N.C.App. 539
• Parties: Darlene SUGGS v. Ruth Thompkins NORRIS, Administratrix CTA of the Estate of Junior Earl Norris.
• Court: North Carolina Court of Appeals

Page 159

364 S.E.2d 159

88 N.C.App. 539

Darlene SUGGS v. Ruth Thompkins NORRIS, Administratrix CTA of the Estate of Junior Earl Norris.

No. 8713SC540.

Court of Appeals of North Carolina.

Feb. 2, 1988.

Williamson & Walton by Benton H. Walton, III, Whiteville, for plaintiff-appellee.

C. Franklin Stanley, Jr., Tabor City, for defendant-appellant.

WELLS, Judge.

The overriding question presented by this appeal is whether public policy forbids the recovery by a plaintiff partner to an unmarried but cohabiting or meretricious relationship, from the other partner's estate, for services rendered to or benefits conferred upon the other partner through the plaintiff's work in the operation of a joint business when the business proceeds were utilized to enrich the estate of the deceased partner.

Defendant argues under her first three assignments of error that any agreement between plaintiff and the decedent providing compensation to plaintiff for her efforts in the raising and harvesting of produce was void as against public policy because it arose out of the couple's illegal cohabitation. While it is well-settled that no recovery can be had under either a contractual or restitutionary (quantum meruit ) theory arising out of a contract or circumstances which violate public policy, Pierce v. Cobb, 161 N.C. 300, 77 S.E. 350 (1913), defendant's application of the rule to the present case is misplaced.

This Court has made it clear that we do not approve of or endorse adulterous meretricious affairs, Collins v. Davis, 68 N.C.App. 588, 315 S.E.2d 759, affirmed, 312 N.C. 324, 321 S.E.2d 892 (1984). We made it clear in Collins, however, that cohabiting but unmarried individuals are capable of "entering into enforceable express or implied contracts for the purchase and improvement of houses, or for the loan and repayment of money." 68 N.C.App. at 592, 315 S.E.2d at 762. Judge Phillips, writing for the majority, in Collins was careful to point out that if illicit sexual intercourse had provided the consideration for the contract or implied agreement, all claims arising therefrom, having been founded on illegal consideration, would then be unenforceable.

While our research has disclosed no other North Carolina cases which address this specific issue, we do find considerable guidance in the decisional law of other states. Most notable is Justice Tobriner's landmark decision in Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976) which held that express contracts between unmarried cohabiting individuals are enforceable unless the same are based solely on sexual services. 18 Cal.3d at 684, 557 P.2d at 122, 134 Cal.Rptr. at 831.

The Marvin Court also held that an unmarried couple may, by words and conduct, create an implied-in-fact agreement regarding the disposition of their mutual properties and money as well as an implied agreement of partnership or joint venture. Id. Finally, the court endorsed the use of constructive trusts wherever appropriate and recovery in quantum meruit where the plaintiff can show that the services were rendered with an expectation of monetary compensation. Id.

Other jurisdictions have fashioned and adhered to similar rules. In Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981), the Nebraska Supreme Court confirmed an earlier rule that while bargains made in whole or in part for consideration of sexual intercourse are illegal, any agreements not resting on such consideration, regardless of the marital status of the two individuals, are enforceable. Id. at 703, 301 N.W.2d at 80.

Likewise, the New Jersey Supreme Court held as enforceable an oral agreement between two adult unmarried partners where the agreement was not based "explicitly or inseparably" on sexual services. Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979). In Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960), the Arizona Supreme Court held that plaintiff's meretricious or unmarried cohabitation with decedent did not bar the enforcement of a partnership agreement wherein the parties agreed to share their property and profits equally and where such was not based upon sexual services as consideration. See also Restatement of Contracts § 589 (1932); Comment, 90 Harvard L.Rev. 1708 (1977).

We now make clear and adopt the rule that agreements regarding the finances and property of an unmarried but cohabiting couple, whether express or implied, are enforceable as long as sexual services or promises thereof do not provide the consideration for such agreements. Moreover, where appropriate, the equitable remedies of constructive and resulting trusts should be available as should recovery under a quasi-contractual theory on quantum meruit.

In the present case, the question is before this Court on an appeal of the trial court's denial of defendant's Motion for Judgment Notwithstanding the Verdict; therefore, our standard of review is whether the evidence viewed in the light most favorable to plaintiff is sufficient to support the jury verdict. Wallace v. Evans, 60 N.C.App. 145, 298 S.E.2d 193 (1982). Applying the foregoing standard, we find that plaintiff's evidence that she began work for the decedent in his produce business several years before she began cohabiting with him and that at the time she began work she believed the two of them were "partners" in the business, was sufficient evidence for the jury to have inferred that plaintiff's work comprised a business relationship with decedent which was separate and independent from and of their cohabiting relationship. Therefore, the jury may have inferred that sexual services did not provide the consideration for plaintiff's claim. We therefore hold...