gave a written extension, for a valuable consideration, on the liability covered by the guaranty. As against this we find, in the case of Stroud v. Thomas, 139 Cal. 274, [96 Am. St. Rep. 111, 72 Pac. 1008], where the surety claimed his discharge by reason of an extension of time of payment of the liability for which he had become a surety, that there was no exoneration of the surety by reason of the fact that the agreement for extension was invalid and unenforceable for want of consideration. The court says: "The principal defense in the case is that arising upon the extension of time. The court finds that on August 1, 1898, after the note became due, the plaintiff received $150 on account of overdue interest, and thereupon agreed to extend the time of payment one year, and that the agreement was without consideration. . . . This payment merely satisfied to that extent the debt due, and did not constitute a consideration for the agreement. . . A promise made without any consideration is not binding. Consequently, the agreement for the extension of time was not a valid promise, and would not bind the plaintiff to forbear suit on the note during the time specified in the agreement." It is true that the sureties' liability arose here on the original instrument, and was not an independent contract of guaranty; but the principle involved is applicable, as the surety would have been discharged from liability if the agreement extending time to the principal obligor had been enforceable. "An agreement for forbearance founded on an unenforceable agreement, even though carried out by the creditor, will not discharge the surety." (Brandt on Suretyship, 4th ed., sec. 376; 24 Am. & Eng. Ency. of Law, pp. 826, 829; Halliday v. Hart, 30 N. Y. 474; Ingalls v. Sutliff, 36 Kan. 444, [13 Pac. 828].)

[3] There is no merit in respondents' argument that the reduction in the rent in this case extended the liability of the sureties. The three thousand dollars named in the bond is the amount of the penalty of the bond, and the liability of the sureties extended to any unpaid rents during the term of the lease, not exceeding the aggregate amount of three thousand dollars. The acceptance of a reduced rent, when taken in full satisfaction of the amount due, in no way changed the liability on the bond. We think the trial court misapprehended the effect, as evidence of a written agree

ment, of the checks and receipts exchanged between the parties in the reduced payment of the monthly rentals.

Appellant asks for an order directing judgment in his favor against the sureties on his bond. This we cannot do under the findings.

The judgment is reversed and the case remanded for a new trial as to the defendants J. W. Chapman and W. L. Altenburg.

Finlayson, P. J., and Thomas, J., concurred.

[Civ. No. 2896. First Appellate District, Division Two.-August 12, 1919.]

LEONARD L. KLEMMER, Respondent, V. SARAH LOUISE KLEMMER, Appellant.

[1] DIVORCE-DESERTION-RES ADJUDICATA-RECONCILIATION.-A decree determining the fact of the husband's desertion of the wife and denying him a divorce does not estop him from thereafter seeking a reconciliation and restoration; nor, in a subsequent action, does such decree constitute an adjudication of his desertion.

[2] ID.

RECRIMINATION-IMPLIED NEGATIVE FINDINGS.-In an action for divorce by the husband, in which the wife pleads certain recriminatory matters but does not seek a divorce, and no findings are made as to such matters, the court's finding of her desertion of the husband does not imply negative findings in regard to the recriminatory matters.

[3] ID.-RECRIMINATORY FACTS PURPOSE OF PLEADING ·

NECESSITY

FOR FINDINGS.-Recriminatory facts should be pleaded, but they are pleaded and proved as a defense simply and in bar of the plaintiff's cause. If evidence in support of the recriminatory mat

1. Decree against plaintiff in suit for divorce as bar to subsequent divorce action, note, 26 L. R. A. (N. S.) 577.

Prior action for divorce in which claim for divorce might have been asserted by counterclaim, setoff, or cross-petition as bar to subsequent action for divorce, note, 8 A. L. R. 721.

3. Recriminatory defenses in suits for divorce, notes, 15 Am. Dec. 211; 86 Am. St. Rep. 333.

Right of recrimination as affected by comparative gravity of offenses, notes, 6 Ann. Cas. 171; Ann. Cas. 1917A, 177.

ters pleaded is introduced or properly tendered on behalf of the defendant, she is entitled to a finding on the issues raised by the pleadings, but if no evidence is introduced or offered in support of the recriminatory pleas, or if the evidence is of so weak a character as not to amount to a showing that the defendant at the time of the divorce suit had a subsisting cause of divorce, failure to find upon them may be excused.

[4] ID.-ADULTERY-FAILURE TO COMPLY WITH SECTION 1019, CODE OF CIVIL PROCEDURE EVIDENCE INADMISSIBLE.-Where the defendant in an action for divorce charged the plaintiff with adultery, referring to the person with whom the acts of adultery are alleged to have been committed as Jane Doe, but, though having ample time without substantial excuse failed to cause the statutory notice to be given to her, upon objection being taken to the admission in evidence of the deposition of one E- M- offered in support of such ground of adultery on the ground that the defendant had failed to comply with the provisions of section 1019 of the Code of Civil Procedure, the trial court properly excluded such evidence; and its refusal in the middle of the trial to grant a continuance that such person might be served did not constitute an abuse of discretion.

[5] ID.-ADULTERY AS RECRIMINATION-WANT OF FINDING

ERROR.-In

such case, there having been no showing of the existence of a cause of action for divorce subsisting in the defendant upon the ground of adultery, failure to find upon such issue did not constitute reversible error.

[6] ID.-EXTREME CRUELTY RELATIONS WITH ANOTHER WOMAN DECLARATION IN HER WILL ADMISSIBILITY OF PETITION.-Where the defendant in an action for divorce pleaded, by way of recrimination, extreme cruelty on the part of the plaintiff, based upon the latter's conduct and relations with another woman, but there was neither allegation nor offer of evidence charging such other woman with adulterous conduct, the court committed error in excluding as evidence a verified petition of the plaintiff filed in an estate in which such other woman was a beneficiary, and where he alleged the death of such woman and set forth her will in which he was named as a beneficiary, and therein referred to as her "fiancê" and she as his "betrothed wife."

[7] ID. RELATIONSHIP WITH OTHER WOMAN-ADMISSIBILITY OF EVIDENCE. In such action, there being no charge of adulterous conduct between the parties, evidence regarding the plaintiff's relationship with such other woman was admissible, not alone in support of the

6. Relations or associations of spouse with persons of opposite sex as cruelty or abusive treatment within statute defining grounds of divorce, note, L. R. A. 1918D, 427.

defendant's recriminatory charges, but upon the issue of good faith on the part of the plaintiff in his offer of reconciliation.

[8] ID. OFFER OF RECONCILIATION-GOOD FAITH-PRESUMPTION-EVIDENCE. The presumption of good faith attends upon every act, unless the surrounding circumstances are such as to overcome the presumption; and in this action for divorce, the letters and conduct of the plaintiff, his relations with the other woman, and the latter's naming him in her will as a beneficiary thereunder, she referring to him as her betrothed husband, his claim to her estate under such will, his successive and unsuccessful suits for divorce, and his long-continued failure to provide support for his wife and child, showed that the element of good faith in connection with his offer of reconciliation was entirely lacking.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John T. Nourse, Judge. Reversed.

The facts are stated in the opinion of the court.

Frank Freeman and John J. Barrett for Appellant.

W. T. Belieu and Jos. L. Taaffe for Respondent.

BRITTAIN, J.-The defendant appeals from an interlocutory decree of divorce.

The parties were married in 1906. In 1911 the husband sued for divorce upon the ground of desertion. She answered, resisting the divorce, and in a cross-complaint for separate maintenance alleged cruelty, failure of support, and desertion on the part of the husband. In that suit the husband was denied divorce. The judgment, among other things, determined the fact of the husband's desertion in 1911, and allowed the wife $50 per month for the support of herself and her minor daughter, whose custody and control were awarded to the wife. The judgment was entered in June, 1912. From 1910 to 1913 the plaintiff did not see his wife.

In August, 1913, with his mother, the plaintiff arranged for his wife to meet him at the Hotel Sutter in San Francisco. In addition to that of the plaintiff and his wife, the only testimony given concerning this meeting was by the

8. Necessity of good faith in seeking reconciliation after desertion, note, 138 Am. St. Rep. 155.

plaintiff's father. There was other evidence of demonstrative character contained in the letters, written after the meeting, from the plaintiff to the defendant. It is in opposition to the plaintiff's oral testimony that his wife then refused to return to him.

[1] On behalf of the appellant it is claimed that the decree in favor of the defendant in the first divorce suit was an adjudication of the plaintiff's desertion and that his offer of reconciliation was too late. To support this position reliance is placed on a decision where it was held that when the wife has a right of action for divorce she is not obliged to condone the offense. (Benkert v. Benkert, 32 Cal. 467.) The supreme court has discussed a similar contention and disposed of it adversely to the appellant, holding that the wife is compelled to assert her right within a reasonable time (Civ. Code, sec. 124, subd. 3), and that under the provisions of section 101 of the Civil Code either party in good faith may seek a reconciliation and restoration, when refusal of the other to conform thereto constitutes a desertion on his or her part, which, if continued for one year, becomes a ground of divorce. (McMullin v. McMullin, 140 Cal. 117, [73 Pac. 808].)

The prior desertion of the husband was not the only recriminatory matter pleaded by the wife. She alleged that the plaintiff had inflicted upon her grievous mental suffering in that, in 1913, he became the affianced husband of one Logan Tooley Clark, sometimes known as Logan Tooley, and that by publication in the daily newspapers in Willows and in San Francisco the fact had become known to many of the friends and acquaintances of the defendant, to her great humiliation and mental anguish. It is further alleged, by way of recrimination, that the plaintiff, in the years 1914, 1915, 1916, and 1917, had lived openly, notoriously, and scandalously at various places in this state with a woman other than his wife, named in the answer as Jane Doe, the defendant forbearing to give the true name of this woman. Substantially the same facts are set forth, coupled with the additional fact of alleged adultery between the plaintiff and the fictitiously named Jane Doe. There was no objection on the part of the plaintiff to the sufficiency of the pleading of any of these matters of recrimination. There was no finding upon any of them. On behalf of the appellant it is argued