Heaps v. Toy

KNIGHT, J.

Plaintiff sued for damages for the alleged breach of an oral agreement she claimed defendant had entered into with her some seventeen years prior to the commencement of the action, concerning their future personal relations with each other. Defendant demurred to the complaint on general and special grounds, and the demurrer was sustained without leave to amend. Judgment of dismissal followed, and plaintiff appeals. Accepting as true the allegations of the complaint, it is apparent that the trial court was justified in holding that the agreement sued upon was void for two reasons: that it was in restraint of marriage, and was founded on a consideration contrary to good morals.

In said complaint plaintiff alleges that she was divorced in Seattle, Washington, in 1921, at the age of 25, and that there were two children (girls) aged 5 and 3 respectively; that shortly after the divorce was granted she left the children in Seattle and moved to San Francisco where she obtained employment in a candy concession in a hotel owned and operated by the defendant; that while so employed she became acquainted with the defendant; that he was about 38 years of age and married, and that ‘1 a strong friendship grew up ’ ’ between them; that her purpose in moving to San Francisco was to gain a business education, establish herself in business and then bring her children to San Francisco to live with her; furthermore, that she “expected and hoped to re-marry with some suitable and desirable person and to rebuild her family upon such re-marriage”; that in accordance with such plan she attended a business school and afterward procured a notary public commission, and engaged in the business of public stenographer and notary in San Francisco; that meanwhile she became “friendly with certain desirable unmarried

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men who wished to marry her and with one of whom she could have contracted marriage. ’ ’ She then goes on to allege that in that situation and about the year 1924 defendant represented to her that he was not living with his wife, that they had been separated for a long time and occupied separate homes, but that he had no grounds for a divorce and his wife would not procure one from him; that thereupon he made the following proposal to plaintiff: “that if plaintiff would forego marrying any other person and would give up her business career and would accept employment as a companion to defendant and would accept no other employment and would keep and maintain for defendant a home where he could live when he desired and where he could entertain his friends, and at which plaintiff would remain, that defendant would procure the removal of plaintiff’s children to San Francisco and would maintain and support them here”; that he would purchase for and have granted to plaintiff a home, furnish and equip the same, and pay all taxes and insurance thereon; that he would support plaintiff “for the remainder of her life” and maintain and support her two children until they should become self-supporting or marry; furthermore that he would provide in his will for her care “as long as plaintiff should live”; and that he would cause a contract to that effect to be reduced to writing “as a guarantee of the permanency thereof.” Continuing, she alleges that she “accepted said proposal of defendant” and “agreed to be thereafter and during the remainder of her life a companion of defendant to be with him at any time that he should desire, and to go with him to any and all places which he should choose, to keep and maintain for him a permanent home in which he could live at any time and to which he could bring any person for entertainment whenever it should please him”; that forthwith they “entered into said agreed relationship; that plaintiff moved to such places as defendant designated and maintained for him such facilities for living and entertaining as he desired and indicated and became his constant companion and accompanied him wherever he desired and forewent any opportunity to marry any other person and abandoned her said business and accompanied defendant on three trips to Europe and one to South America and in general devoted her entire time and efforts to the service of defendant in accordance with her agreement . . .”; also that in pursuance of said agreement defendant brought