or has offered to the vendor, and not merely to the broker, to make such an agreement, the broker has not earned his commission. (Gunn v. Bank of California, 99 Cal. 349, [33 Pac. 1105]; Mattingly v. Pennie, 105 Cal. 514, [45 Am. St. Rep. 87, 39 Pac. 200]; Mott v. Minor, 11 Cal. App. 774–779, [106 Pac. 244]; Douglas v. Spangenberg, 23 Cal. App. 294296, [137 Pac. 1103]; Massie v. Chatom, 163 Cal. 772-776, [127 Pac. 56].) It is not pretended that an offer of any sort was made to Christeson personally, and the letter to Hicks was nothing more than a proposal for a change in the terms of the option. It follows that even if we give to the optional agreement all of the force accorded to it by the learned superior court, we must reverse the judgment, because the proof fails to show any binding contract for the sale of Christeson's land. This conclusion makes it unnecessary to consider any of the other assignments of error except the plea of the statute of limitations.

Appellant contended that the cause of action was barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure. The original complaint concededly was filed within the statutory time, and although the amended complaint was prepared after the expiration of the period limited by the statute, we are satisfied that both pleadings relate to the same cause of action.

The judgment and order are reversed.

Henshaw, J., Sloss, J., Shaw, J., Lorigan, J., and Lawlor, J., concurred.

Rehearing denied.

[S. F. No. 7135. Department Two.-March 29, 1917.]

CECILE B. HALL, Respondent, v. WILLIAM HALL et al., Appellants.

HUSBAND AND WIFE-ALIENATION OF HUSBAND'S AFFECTIONS-ACTION AGAINST PARENTS OF HUSBAND-EVIDENCE. In this action by a wife against her husband's parents to recover damages for the alienation by them of her husband's affections from her, the evidence is held insufficient to sustain the verdict in favor of the wife.

ID.-DEGREE OF PROOF.-To sustain an action for damages against par

ents for the alienation of the affections of their married child from his or her spouse the measure of proof must be extremely high.

APPEAL from a judgment of the Superior Court of Santa Cruz County, and from an order refusing a new trial. Lucas F. Smith, Judge.

The facts are stated in the opinion of the court.

Chas. M. Cassin, and James L. Atteridge, for Appellants.

Beggs & McComish, H. C. Jones, and C. C. Houck, for Respondent.

HENSHAW, J.-Plaintiff sued defendants, who are respectively the father and mother of her husband, to recover damages for the alienation by them of her husband's affections from her. The charge was that "The defendants willfully, wrongfully, wickedly, unjustly and maliciously contriving and intending to injure plaintiff and deprive her of the affection, support, comfort, fellowship, society, aid and assistance of plaintiff's husband . . . alienated and destroyed the affection of said Robert Hall, the husband of this plaintiff for this plaintiff, . . . and did willfully, illegally and maliciously entice, abduct and persuade said Robert Hall from plaintiff, whereby plaintiff has wholly lost and has been deprived of the assistance, comfort, fellowship, society, aid and support of said Robert Hall." Trial was had before a jury, which returned its verdict in favor of plaintiff in the sum of ten thousand dollars. From the judgment and from the order of the court denying their motion for a new trial, defendants appeal.

Upon appeal their principal effort is directed to the contention that the evidence is wholly insufficient to justify the verdict, and this effort, it may be said at the outset, is wholly successful. Seldom, indeed, is it that a reviewing court is called upon to consider a verdict such as this, whose evidentiary foundation is airy nothingness, not even the baseless fabric of a vision.

Plaintiff and her husband, Robert Hall, were married in Los Gatos, Santa Clara County, in November, 1906. At the

time of their marriage the husband was about twenty-six years of age, the wife a few years younger. Her parents were living in Los Gatos, so were his. He seems to have been an only child. His father and mother had been married more than fifty years, and at the time of the trial of this action the father was seventy-five years of age and the mother sixty-eight years of age. They owned their own home. They had some property. They were frugal, and the old wife did. all of the household work. The narration which follows is that of the plaintiff. Following their marriage in the latter part of November she and her husband went to San Jose. Her husband's parents came to them and begged them to come and live with them in Los Gatos, Mr. Hall saying that his wife would teach the bride economy. Apparently the wife had no means; the husband was earning about seventyfive dollars a month. The newly married couple went to Los Gatos and began housekeeping in rooms not far from the home of the elder Halls. They were visited quite frequently by the latter, old Mrs. Hall urging that the young people come and live with them; saying that the cost of living was high and they could live more cheaply together. They did not comply with the Halls' request, however, but continued to live as they had been doing until the husband went into the near-by mountains under employment as a wood-chopper, and the wife went to live at her parents' home. During this time, when the husband was free from his mountain labors, he returned to and lived with his wife. One painful incident occurred during this time. The husband and wife were making a call upon his parents. The mother was urging that they should come there to live. Robert said that he didn't think they would; "then she began screaming and raving about me; that I was trying to keep Robert away from her. They put her to bed and worked with her for some three hours. She insisted that Robert stay all night with her, and as I was not wanted I started home, and after I started I discovered I had not the key, and I came back to get the key, and Robert came on home with me." Plaintiff is a school teacher, and obtained a position as such to teach a country school distant from the city of San Luis Obispo about thirty miles. Her school term began in July and ended in November. Her husband went with her to the city of San Luis Obispo, and for his own improvement took a course in a poly

technical school there situated, while his wife went to the country to teach. Every week, usually on Friday afternoon, he rode his bicycle thirty miles to be with her over the week's end. While there she took from her husband's suitcase and read certain letters written to him by his father. She was permitted to give secondary evidence of the contents of these letters. She said that in them her husband's father accused her of being "wasteful and extravagant" and "a hindrance to Robert's spiritual development"; that he ought to separate from her; that the letters often contained the quotation "Be not unequally yoked with unbelievers." He urged his son to "take the paper route by all means for twenty dollars a month, but do not let Cecile know how much you are getting, and once in awhile, in case of absolute necessity, I will slip in a little." The letters told her husband to keep her there teaching, "that would be a good lesson in economy for her." Another letter said: "Let Cecile come on home and I will meet you in San Luis and together we will take a trip in Madera County, but don't let Cecile know I am coming. You will know how to manage that." It is pertinent here to add that the father denies having written and the son denies having received letters of such import. Certain trips made by father and son together are complained of by plaintiff, as, for example, she persistently calls a trip which her husband and his father made to Los Angeles as their "wedding trip." The explanation of these trips is that the father was earnestly seeking to establish the son in some profitable business, and his wife was unwilling to go on these trips with them. In December, 1907, they returned from San Luis Obispo to Los Gatos and took up their abode in the home of defendants. Plaintiff was pregnant. As the date of her confinement approached she told her mother-in-law that she expected the arrival of the little grandchild, and the mother-in-law "sat back in her chair with utter scorn and disgust on her face and never said one word." She asked her mother-in-law if she might stay in her home during the period of her confinement and convalescence and her mother-in-law replied, "Yes; you may stay here, but you must not be a trouble to me." The aged mother-in-law's account of this interview was that she looked forward to the birth of her grandchild with great interest; that she told her daughter-in-law that she could stay there if she desired,

CLXXIV Cal.-46,

"but there are some things I cannot do for you." So the daughter-in-law went to a sanatorium, where she was confined. On leaving the sanatorium, about the middle of July, 1908, she did not return to the Halls, where her husband still was, but went to her mother's, where she remained until in August, 1908, she and her husband moved to San Jose. There they resided until June, 1909. The defendants visited them not infrequently, and her father-in-law paid at least in part for the furniture in their San Jose home. In June, 1909, they returned to Los Gatos, moved by consideration of the baby's health. The husband continued in his employment in San Jose, and went back and forth on the interurban cars. They lived in their own home. The principal complaint of the conduct of the husband during this time is that, returning to Los Gatos from San Jose, he usually went first and directly to the home of his parents and spent some time there before returning to his own. Sometimes he took his supper there. The explanation is that the son spent his time helping his aged father and mother in the work about the place, and that when he took supper with them it was because he preferred to do this rather than to get his own supper at home, as frequently he was obliged to do because of his wife's absence at her mother's home. Their residence in Los Gatos continued until January, 1911. During that period of time between 1909 and 1911 plaintiff asked the Halls at sundry times many questions. She asked Mr. Hall, Senior, "Why two months after we were married he suggested to my husband that I married him for his money, thus poisoning his mind against me. Mr. Hall's reply was, 'Well, what do you think we thought you. married him for? People call me a millionaire and people are after my money. What else do you think I thought you married him for?'" But elsewhere she testifies that the elder Halls hailed her marriage to their son with great delight. Again she asked Mr. Hall "why he suggested to Robert that we were not mated by constantly suggesting to him we were not mated. He said he didn't think we were mated, and he considered it his duty to separate two people who were not mated. Again I asked Mr. Hall why he was a party to offering me one thousand dollars in March, 1907, to leave my husband and telling me I could go as a missionary if I wanted to. Mr. Hall's answer was— coolly sat back and said he supposed it was because they