now residing somewhere in the state of Kansas." It will be noted that the statute uses the word "departed"; but the affidavit uses the word "left." The two words are not synonymous. (Pezzoni v. Pezzoni, 38 Cal. App. 209 [175 Pac. 801].) If for the purpose of strengthening the meaning of the word "left" and to give it something of the significance of the word "departed" we give some force and effect to the additional language contained in the affidavit, then the words "for some place without the state of California unknown to affiant" become material. But those words were false. Under the uncontradicted testimony the defendant knew where the plaintiff was going when she left the state of California because at that time he obtained for her a pass to Dodge City, Kansas. That portion of the affidavit "that the present whereabouts of defendant is now unknown to affiant, but affiant has been informed and verily believes that defendant is now residing somewhere in the state of Kansas," is not helpful. The "present whereabouts," etc., is not responsive to any call of the statutory provisions "has departed from the state." The statement on information and belief, "that defendant is now residing somewhere in the state of Kansas" is not, properly speaking, an affidavit. The false representation above referred to invalidated the affidavit and the affidavit was to that extent a fraud on the trial court. (Parsons v. Weis, 144 Cal. 410 [77 Pac. 1007].) [7] As the defendant Williams was the guardian and husband of the plaintiff, the highest duty was owing from him to her. As the defendant Williams was, as guardian, an officer of the court, a special duty was owing by him to the court. When he did not call to the attention of the trial court either in his complaint, or in the affidavit accompanying it, the fact that he was suing his ward, and that his ward was an incompetent person on whom a summons might not legally be served, he was guilty of concealment, another fraudulent act. (Silva v. Santos, 138 Cal. 536 [71 Pac. 703]; Pomeroy's Equity Jurisprudence, 900, 902.) It is clear, therefore, that the evidence sustains the findings.

[8] In her complaint the plaintiff pleaded, "That by reason of the wrongful acts of defendants herein in obtaining said fraudulent judgment of divorce this plaintiff has been delayed and prevented from proceeding with an action

against F. B. Williams defendant herein for her maintenance and support and has been compelled to hire an attorney to vacate said judgment of divorce. That the reasonable value of the services of her attorney for such services is the sum of five hundred dollars." As supporting the above allegations, on the trial she introduced evidence of the reasonable value of her attorney's fee and no other evidence. The trial court found the above allegation to be true and awarded damages as prayed. It thus appears that the theory of the pleader was that she was entitled to recover the attorney fee as an element of damage. Such was not the rule at common law. (1 Sedgwick on Damages, sec. 229.) No statute in California has changed that rule. (Code Civ. Proc., sec. 1021; Grannis v. Superior Court, 143 Cal. 630, 633 [77 Pac. 647].) The judgment rendered by the trial court is modified by striking out that portion that awarded judgment against the defendants for damages in the sum of five hundred dollars. The respondent is awarded her costs on appeal.

As so modified the judgment is affirmed.

Nourse, J., and Langdon, P. J., concurred.

[Civ. No. 4108. First Appellate District, Division Two.-March 13, 1922.]

HARVEY M. BARNGROVER, Respondent, v. LUCILE L. BARNGROVER, Appellant.

[1] DIVORCE-EXTREME CRUELTY-NAGGING SUFFICIENCY OF EVIDENCE. On this appeal from a decree granting the plaintiff a divorce on the ground of extreme cruelty, the findings of a most peculiar case of nagging growing out of the ultra-puristic character of the defendant are supported by the evidence.

APPEAL from a judgment of the Superior Court of Santa Clara County. P. F. Gosbey, Judge. Affirmed.

1. What constitutes extreme cruelty justifying a decree of divorce, notes, 65 Am. St. Rep. 69; Ann. Cas. 1918B, 480, 500; 18 L. R. A. (N. S.) 305; 34 L. R. A. (N. S.) 360.

The facts are stated in the opinion of the court.

S. G. Tompkins for Appellant.

L. E. Petree and D. T. Jenkins for Respondent.

STURTEVANT, J.-This is an appeal from a decree granting to the plaintiff a divorce from the defendant. The decree was based upon the extreme cruelty of the defendant, and the cruelty complained of was mental cruelty, as distinguished from physical cruelty. [1] The appellant makes one point and that is that the evidence does not sustain the findings, and in this behalf the appellant argues that the probative elements adduced by the plaintiff at the trial were altogether trivial. The testimony and proceedings are all before us. The testimony alone takes up more than one thousand folios. We have read the record from cover to cover. The trial court found among other things, and the record abundantly supports, a most peculiar case of nagging. As the story of the case was unfolded, it was disclosed that the same tendency of character on the part of the defendant was displayed, not only toward her husband, but toward her child, and toward her tradespeople, and toward her friends and acquaintances. Neither the law nor the interests of the parties require that we should restate the testimony in this opinion. In addition to the feature which we have specially pointed out, there are other matters contained in the record which counsel claim to be immaterial. Conceding without deciding that counsel's contention is correct, there still remains within the record the element which we have specially adverted to. The nagging grew out of the ultra-puristic character of the defendant. The appellant says that "she is an earnest Christian woman." It may be added that the whole record sustains that claim. It may be added that apparently the plaintiff is an earnest Christian man. Nevertheless, it is a sound legal proposition that nagging by a spouse of such character may have, and probably would have, the same effect on the other spouse as any other kind of nagging. The appellant also argues that "her motives have always been good." Conceding such to be the fact, it still remains that nagging from good motives may be just as hurtful as nagging from any

other kind of motives. The case was most thoroughly and completely presented to the trial court by able counsel who tried the case behind closed doors. The testimony covered a period of ten years and over. The case for the plaintiff was presented by calling to the witness-stand sixteen of the neighbors and friends of both of the litigants. Two of those witnesses were ministers of the gospel. One of them was at one time the pastor in the Protestant church of which both the plaintiff and defendant were members. One cannot read the record without admiration for the apparent truthfulness of each and all of the witnesses and the absence of bias and prejudice on the part of the witnesses.

The appellant says that if the facts contained in the record before us "establish grounds for divorce, then it is certain that any husband can divorce his wife, and any wife can divorce her husband at will, since the peccadilloes complained of are not as serious as those of which nine out of ten husbands and wives are guilty." This is not a sound statement, because a most cursory reading of the record discloses a set of facts seldom or never heard of.

In behalf of the appellant the utmost that can be said is that there were some conflicts in the testimony, however those matters were addressed to the trial judge, and this court is bound by the findings made by the trial judge on such conflicting evidence.

The judgment is affirmed.

Langdon, P. J., and Nourse, J., concurred.

[Civ. No. 3651. Second Appellate District, Division One.-March 13, 1922.]

FRANKLIN W. ALLEN, etc., Appellant, v. LAUGHLIN FRUIT REFINERS, INC. (a Corporation), Respondent.

[1] APPEAL-DEFECTS IN NOTICE-ACTS OF RESPONDENT-WAIVER OF DEFECTS. An appeal will not be dismissed for alleged defects contained in the notice of appeal where the respondent obtains stipulations and orders extending the time for filing its brief, unaccompanied by any reservation, since such acts constitute a complete appearance and acknowledgment of the pendency of the appeal.

[2] CONTRACT-COPY OF PERISHABLE FREIGHT INVESTIGATION REPORT— CORRESPONDENCE BETWEEN REPORTER OF INTERSTATE COMMERCE COMMISSION AND SHIPPER-RIGHT OF CANCELLATION OF CONTRACT. A letter written by the official reporter of the Interstate Commerce Commission to a shipper of perishable freight expressing a willingness to accept an order for a copy of the perishable freight investigation report, "subject to cancellation at any time as to reports of subsequent hearings," and the reply of the shipper placing the order subject to cancellation at any time, constituted the contract under the terms of which the plaintiff was entitled to compensation at the agreed rate for such service as was rendered prior to the receipt in due course of the order of cancellation, and the shipper had not the right thereunder to refuse to accept the first delivery.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge. Reversed.

The facts are stated in the opinion of the court.

Adams, Adams & Binford for Appellant.

Dana Ong for Respondent.

CONREY, P. J.-At all times mentioned in the complaint the plaintiff was the official reporter for the Interstate Commerce Commission. Commencing on July 7, 1919,

2. Time when contract consisting of letters or telegrams showing offer and unconditional acceptance is complete, note, 6 Ann. Cas.

378.