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Whorton v. Dillingham - 202 Cal. App. 3d 447, 248 Cal. Rptr. 405 (1988)


The general rule is that a cause of action for breach of contract accrues at the time of breach. A contract involving parties' cohabitation is breached when one partner terminates the relationship. The statute of limitations for an action upon a contract not founded on a writing is two years. 


Donnis G. Whorton and Benjamin F. Dillingham III began dating and entered into a same sex relationship. At that time, Whorton was studying to obtain his Associate in Arts degree, intending to enroll in a four-year college and obtain a Bachelor of Arts degree. When the parties began living together in 1977, they orally agreed that Whorton's exclusive, full-time occupation was to be Dillingham’s chauffeur, bodyguard, social and business secretary, partner and counselor in real estate investments, and to appear on his behalf when requested. Whorton was to render labor, skills, and personal services for the benefit of Dillingham's business and investment endeavors. Additionally, Whorton was to be Dillingham's constant companion, confidant, traveling and social companion, and lover, to terminate his schooling upon obtaining his Associate in Arts degree, and to make no investment without first consulting Dillingham.

In consideration of Whorton's promises, Dillingham was to give him a one-half equity interest in all real estate acquired in their joint names and in all property thereafter acquired by Dillingham. Dillingham agreed to financially support Whorton for life, and to open bank accounts, maintain a positive balance in those accounts, grant Whorton invasionary powers to savings accounts held in Dillingham's name, and permit Whorton to charge on Dillingham's personal accounts. Dillingham was also to engage in a homosexual relationship with Whorton. Importantly, for the purpose of our analysis, the parties specifically 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.

Whorton allegedly complied with all terms of the oral agreement until 1984 when Dillingham barred him from his premises. Dillingham now refused to perform his part of the contract by giving Whorton the promised consideration for the business services rendered. Whorton filed a breach of contract case against Dillingham, claiming property rights based on an oral cohabiters' agreement with which he fully complied but which Dillingham breached after approximately seven years. The trial court found the pleadings showed the contract was unenforceable as expressly and inseparably based on sexual services and sustained Dillingham’s demurrer. Whorton appealed the judgment.


Did one party to a cohabiter agreement have a cause of action due to breach of the oral contract, with the sexual services component of the contract being severable from the remaining portions of the purported contract?




The Court of Appeal reversed the judgment. The Court held that Whorton's claim that he provided services as a bodyguard, business partner, chauffeur, and secretary was sufficient to state a cause of action for breach of a contract supported by consideration. Although the Court acknowledged that sexual services were an express part of the parties' contract, and that such contract could not be enforced to the extent it was dependent on sexual services for consideration, the Court relied on prior case law in holding that the other services plaintiff claimed he provided were severable from the portion of the contract related to the sexual services. The Court then held that the facts of the case were sufficient to estop Dillingham from raising the statute of frauds. Additionally, the Court held that Whorton brought his claim within the applicable statutes of limitations. Thus, the Court  held that the trial court erred in sustaining a demurrer to the suit.

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