The plaintiff and the defendant are husband and wife. This is a suit by the plaintiff for a divorce from the defendant on the ground of wilful desertion. The complaint, which was filed on the tenth day of September, 1924, after alleging the fact of the intermarriage of the parties in January, 1917, and the fact of the plaintiff’s residence in the state of California and of the county of Los Angeles for more than one year prior to the commencement of this action, proceeds:

The complaint further states that “there is no issue of the said plaintiff and said defendant,” nor (it is likewise further stated) are there “any community or other property rights between the said plaintiff and the said defendant.”

A general demurrer to the complaint was overruled, and the defendant thereupon answered, denying the essential allegations of the complaint and then declaring:

The statement in the complaint that there is no issue of said marriage and the further statement that there are no community or other property rights of the parties are not denied, and the truth of those allegations of the complaint, therefore, stand admitted by the pleadings. And there is no evidence in the record of children born to them or of any community rights between the parties.

The court made findings, upon which it predicated its interlocutory decree, declaring that the plaintiff is entitled to a divorce from the defendant. The latter appeals from said decree.

The points urged here are that the findings and the interlocutory decree are without sufficient evidentiary support, but that if there was a voluntary separation by the defendant from the plaintiff with intent to desert the latter, the evidence shows that the former, before the expiration of the statutory period (one year) required to constitute a cause of action for desertion, offered in good faith to fulfill the marriage contract, and solicited condonation, which was refused by the plaintiff. (Civ. Code, sec. 102.)

The findings and the decree are afforded sufficient evidentiary support. It may be conceded for the purposes of this decision that upon the ultimate questions of fact there is a substantial conflict.

The plaintiff is an architect by profession and the defendant a school teacher. They intermarried on the tenth day of January, 1917, at the city of Minneapolis, in the state of Minnesota. At that time the plaintiff resided at Minot, North Dakota. Plaintiff testifies that after his marriage with defendant he made up his mind to leave Minot and seek a location elsewhere; that, carrying out this determination, he went to Calgary, Canada, in January, 1920, and, after being there “a week or two,” decided to locate at that place, and did take up his residence there. He continued :

Plaintiff further testified that he did not know that his wife was going to Minneapolis with her mother on the 19th of September, 1921, until within a few hours of the time they departed. Defendant then stated to the plaintiff that she intended to take her mother home and would remain at Minneapolis for two or three weeks and then return to Calgary. “After that time elapsed,” continued plaintiff, “I began to wonder whether she was coming back or not, because on her departure I noticed a great many items taken out of the house”—that is, as he explained, “all the silverware, a lot of china, glass, bed linen; in fact, there was practically nothing left but the furniture itself—no other items. But, as she had left the previous year for a period of four months, I thought probably I might induce her to come back; so I wrote at various times to Mrs. Stacy-Judd, urging her to return. Q. What did she reply? A. I don’t remember having a reply at all. And then about a month or five weeks before Christmas I thought I would make a final effort, and I redecorated the house, spent quite a lot of time there, and got together a lot of items; and at that time I also had my mother, and I sent her a long telegram urging her to return; that was just prior to Christmas; and I did not get an answer at all until, I think the letter was dated the 10’th of January, 1922, wherein she said she had no intention— Q. Just a minute. Was there any particular argument prior to the time she left as you stated? A. No, sir, none at all. Q. I show you a letter purporting to be dated January 10, 1922, signed ‘Anna’ and ask you to look at the signature and letter and state in whose handwriting both are? A. Mrs. Stacy-Judd’s. Q. Is this the letter you received by ordinary course of mail? A. Yes, sir.” The letter referred to, with a few statements contained therein, as given here, deleted because not being of importance, reads:

On February 19, 1923, the defendant wrote and addressed the following letter to plaintiff:

The defendant, not having received an answer to the above letter, addressed the following letter (undated but registered at Minneapolis) to plaintiff:

Again the defendant addressed a letter to plaintiff, at Minneapolis, under date of August 29, 1923, which is as follows:

The above letters, it will be noted, were written subsequent to the expiration of the one-year period during which wilful desertion must exist before it becomes a legal ground for divorce. The plaintiff testified that in no letter received by him from the defendant was there any proposal or suggestion of reconciliation or an offer to return. It appears that the defendant went to Los Angeles in October, 1923, “to see,” so she testified, “if I could make up with him,” but found that he would not talk to her on the subject of reconciliation. This, it will be observed, was two years after the date (September 19, 1921) she left Calgary for Minneapolis with her mother, and, obviously, only a few months short of two years after defendant’s letter to plaintiff under date of January 10, 1922, was written, in which she positively declared that she had decided not to return to and live with the plaintiff, and that such decision was final. The plaintiff testified, however, that, after her arrival in Los Angeles, the defendant had a number of conversations with him, either in person or over the telephone, and that in none did she express a desire for a reconciliation, but on every such occasion discussed the matter of a money settlement only.

Richard Roberts testified: “I met the defendant at the Hollywood Branch of the Pacific Southwest Bank, where I was manager at the time. Mrs. Judd came to the office and stated she had left Mr. Judd in North Dakota on account of his inability to support her and she was down trying to arrange a monetary settlement with him. She said she had not been happy with him. This was in the Spring of 1925.”

Mrs. Hallie Hayward, residing in Los Angeles, and an acquaintance of the defendant, testified that the latter was at the witness’ home a short time after the complaint herein was filed (Sept. 10, 1924); that during the course of the conversation the defendant stated she “had come out to California, I think it was in the summer previous”; that some friends had written her before she went to Los Angeles and “told her that her husband was doing a very good business, and she said that she had given the better part of her life to him and she felt that some recompense was owing to her, and she had made up her mind that if he was getting along he ought to support her”; that she further said that “she had been unable to live with him because she had come from a home where she had everything, every luxury, and when she married Judd she was under the impression that he was a wealthy young bachelor, and after she married him she found out that he hadn’t any money; that she had not been accustomed to do housework, and she didn’t like it, and she said that in order to not to go around in rags she had to teach school.” The witness, continuing, stated that defendant further said that “she .preferred teaching school to keeping house, and disliked living with him so much that she would rather be occupied.” She (defendant) in that conversation also declared that her family disliked Judd.

Mrs. Ann Stevens, who was present at the conversation between the defendant and Hayward, upon being asked by counsel for the plaintiff as to the purport of said conversation, testified:

Herman Vanderhoogan, a building contractor, was acquainted with the plaintiff in Calgary, Canada, and had met the defendant there in her husband’s office. The witness had done some work on plaintiff’s house in Calgary. He (the witness) went to Los Angeles in 1922, arriving there on November 10th of that year. He testified that in the year 1924 he met the defendant in the plaintiff’s office in Hollywood. In 1925 he met her in the Pacific Southwest Bank in Hollywood; that he was in the lobby of the bank waiting for a party with whom he had an engagement, and the defendant, being also in the lobby of the bank at that time, “noticed me, and walked up to me and started talking about what she had previously told me in the (plaintiff’s) office. She said she was absolutely dissatisfied with Mr. Stacy-Judd and she could not get what she wanted; she wanted a settlement in good, real hard cash, and she could not get any money out of him, could not get any care, and he had never kept her; it was absolutely—he was absolutely no good, and she could not live with him.”" Vanderhoogan also corroborated the testimony of the plaintiff to the effect that, prior to the latter’s receipt of defendant’s letter of the tenth day of January, 1922, he was having his house in Calgary remodeled and repaired so that it would be in good condition on the return of the defendant to Calgary.

The foregoing statement of the evidence presented by the plaintiff is sufficient to confirm the statement above made that the findings and the decree are amply supported.

The defendant testified that she endeavored in every way to effect a reconciliation between her husband and herself, but that he refused to entertain any proposition looking to that result. She said that the letter written by her to the plaintiff under date of January 10, 1922, was intended as a “bluff,” her motive being the hope that thus she would bring him to his “senses” and cause him to resume their marital relations and live happily together. She then, rather inconsistently with that statement, testified that she did not intend to mail the letter, but that while she was. temporarily absent from home or the room in which she had left the letter, her sister mailed it with other letters. But there was introduced in evidence no letter written and sent by the defendant to the plaintiff in which she expressed a willingness to return, or a desire or wish that their differences be forgotten and thus their reconciliation effected. There were, it is true, several postoffice receipts of registered letters sent by the defendant to plaintiff, but the letters themselves were not produced. Besides, with the exception of one or two of these, said letters were sent to and received by the plaintiff after the expiration of one year froflt the time that the defendant deserted the plaintiff. The defendant testified that the registered letters contained, substantially, an acknowledgment by her of her error in leaving the plaintiff and a direct offer on her part to return to and live with him. But, as seen, the defendant contradicted her testimony as to that matter, hence, as to any of the registered letters sent by defendant to the plaintiff prior to the expiration of the statutory period for desertion which de fendant claims contained an offer byo her to return to and resume marital relations with the plaintiff, there is a substantial conflict in the evidence, which it was the sole function of the trial court to settle. Section 102 of the Civil Code reads as follows:

As the counsel for the plaintiff well says in his brief:

It is settled law that repentance on the part of the offending party cannot have the effect of destroying a cause of action for desertion already accrued, unless the injured party of his own free will accept such offer of condonation. Of course, this means that the injured spouse is not compelled to accept an offer to return made after the expiration of the statutory period in such cases.

In Walker v. Walker, 14 Cal. App. 487 [ 112 Pac. 479 ], it is said:

Respecting the element of good faith as one of the essentials of an offer of the guilty party to return, it is said in Peretti v. Peretti, 165 Cal. 717, 719 [ 134 Pac. 322 323 ]:

In Kusel v. Kusel, 147 Cal. 52, 54 [ 81 Pac. 297 ], it is said that under the terms of section 102 of the Civil Code, to cure desertion, it is necessary that, with the offer to fulfill the marriage contract, condonation must be asked for or solicited.

The plaintiff, it appears, upon receiving from defendant the letter of January 10, 1922, delivered it into the hands of an attorney, with directions to the lawyer to prepare and file a complaint in a suit for divorce against the defendant. It is here contended by the defendant that those acts on the part of the plaintiff constituted a refusal by the latter to accept the defendant’s offer for reconciliation. But this contention is inconsistent with the trial court’s sufficiently supported findings. In other words, the contention proceeds upon the assumption of a return and offer by the defendant to renew marital relations, which elements, according to the findings, supported as we have said by the evidence, are absent from this ease.

Another contention by the defendant is that the evidence shows that the separation was by or upon mutual agreement of the parties. Of course, the findings are also inconsistent with that contention. While it is true that the plaintiff, after learning (only a few hours before the hour of their departure) that the defendant and her mother intended to leave Calgary for Minneapolis acquiesced in the defendant’s plan to make that journey, still it is clear that the evidence, viewed as a whole and upon a rational consideration thereof, warranted the court in finding, as in legal effect it did find, that the defendant, when she left Calgary for Minneapolis, did so with the deliberate intention or purpose to separate permanently from the plaintiff and so desert him. Plaintiff’s approval of her act in departing from Calgary at the time mentioned was, according to his testimony, which the trial court had the legal right to accept, upon her representation to him that she merely desired to accompany her mother to her (the mother’s) home in the American city named, and that she (defendant) would return to the plaintiff at their Calgary home in two or three weeks. Moreover, as seen, the plaintiff testified that, unbeknown to him, the defendant (who had undoubtedly been contemplating that journey to Minneapolis for some time prior to her departure therefor) had gathered together and packed in a form convenient for shipment, or carriage in some manner, nearly, if not quite, all the household equipments contained in the Calgary house of the parties, and shipped or carried them with her to her mother’s Minneapolis home. These circumstances, together with the fact that she did not return to plaintiff, but instead of so doing wrote and sent him her letter of January 10, 1922, in which she declared that her decision not to return to or live with the plaintiff was final and that (in effect) any appeal he might make to her for a resumption of the marital relation between them would be futile, constitute a singularly strong showing of her intention to desert the plaintiff, an intention of which the latter, so he testified, had no knowledge or suspicion until it was revealed to him by the defendant’s said letter to him. Thus it was further shown to the evident satisfaction of the trial court, that the plaintiff did not acquiesce in or agree to or approve the act of the defendant in separating from him in the sense of a separation which, if existing for the period of one year, would give to the innocent spouse a cause of action for divorce on the ground of wilful desertion.

There are no further points requiring consideration. There is no substantial merit in the appeal. The decree appealed from is, accordingly, affirmed.

Pinch, P. J., concurred.