I dissent.
Being convinced that great confusion and uncertainty will result from the majority opinion, I feel constrained to call attention to the principles of law involved in this case with the hope that the bar may see fit to call the same to the attention of the Legislature to the end that appropriate legislation may be adopted to clarify what the Legislature obviously intended to be the law when it enacted section 175 of the Civil Code. This confusion could obviously have been avoided had this court followed the sound legal reasoning of the-trial court and applied settled principles of law to the facts of this ease.
There are two main questions presented in this case: *250(1) May an action for separate maintenance be maintained by the wife when she is living separate and apart from her husband pursuant to agreement wherein the husband agrees to pay her support money, but has defaulted in the payments, or is her sole cause of action one-on the agreement ? (2) Assuming she may maintain such an action, does she have to make an election whether she will proceed under the statutory liability for support—separate maintenance, or under the contract, and if so, when ?
The answer of the majority to the first question is that she has both remedies. As to the record, it is not clear which remedy she is seeking.
It would seem that as long as the contract exists the sole remedy is on it unless we read language into section 175 of the Civil Code. There is no doubt that the husband is liable by law for the support of the wife. But there are exceptions to that liability by reason of section 175 which reads: “A husband abandoned by his wife is not liable for her support until she offers to return, unless .she was justified, by his misconduct, in abandoning him; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement.” That is to say no such liability exists where (1) the wife has unjustifiably abandoned her husband or (2) she is living separate from him by agreement unless he agrees to support her. The reasonable conclusion is that it is the agreement to support which is the basis of her right where there is a separation agreement and the statutory liability does not exist until and unless the agreement is repudiated and rescinded, and necessarily, the only remedy for a breach of the agreement is an action on the contract. It is said in 7 So.Cal.L.Rev. 342, 343: “It would seem that if the husband defaults on the agreement by failing to pay the monthly allowance, the wife’s remedy should be on the agreement. She may, and did in the instant case, secure a judgment against the husband for the amount in default. Since her right to support is derived from the agreement (§ 175) she should not be able to resort to the common law obligation but should be required to pursue her remedy on the agreement. ’■’ At most, the right cannot shift to the statutory duty until the contract ceases to exist. That might occur by mutual rescission, reconciliation or offer thereof, or by a complete repudiation of it by the husband, accepted by the wife as an abandonment of the contract. Certainly a mere failure to pay a few monthly installments is not a repudiation. *251That there must, be an abandonment of the agreement, by the wife before an action for separate maintenance lies is evident, from the fact, that as long as the contract is in force, she is living apart from her husband with Ms consent and is thus not entitled to support under section 175. It is said in London G. & A. Co. v. Industrial Acc. Com., 181 Cal. 460, 466 [184 P. 864], in stating that an interlocutory judgment of divorce with no provision for support is like a contract to live apart: “The judgment has the effect of a contract for that purpose. Until that contract is in some manner changed, either in the action or in some independent proceeding, or by a reconciliation, her right to support is suspended.” (Emphasis added.) The court stated in Lloyd Corp. Ltd. v. Industrial Acc. Com., 61 Cal.App.2d 275, 279 [142 P.2d 754]: “A husband’s obligation of support is suspended while his wife is living separate from him by agreement (Civ. Code, §175), but the resumption of marital relations, following a reconciliation, cancels the executory obligations of separation agreements.” (Emphasis added.) If it is suspended when there is an agreement, it stays suspended as long as there is such an agreement. The wife cannot say yes there is an agreement but my husband has failed to make some payments thereunder and thus I am entitled to separate maintenance, for by standing on the agreement she is necessarily consenting to live separate and apart, and thus, is not entitled to support under section 175. She cannot insist that part of the agreement be in force and the remainder not. It makes no difference whether she has grounds other than failure to provide for separate maintenance, she still has no right to support until she ceases to live separate with his consent or unless she is justified by her husband’s conduct. Under any other view, a separate maintenance action is being used as merely an auxiliary remedy to enforce the agreement for support. But that cannot be done because it is conceded that such an action cannot be maintained as long as the husband performs.
It follows that an essential part of plaintiff’s action for separate maintenance is missing, namely, that defendant has repudiated the separation agreement and plaintiff accepts such repudiation. Plaintiff makes no contention that the 1937 contract has been terminated. Such being the ease, her only action is on the contract. This the plaintiff has not done. She took no stand on the matter in her complaint, in the trial court, or here, although pressed to do so.
*252The majority opinion entirely disregards the basic principle of law codified in section 175 of the Civil Code. That principle may be stated as follows: If the husband and wife are living separate and apart by agreement, the husband is not liable for her support unless the agreement so provides, in which event, he is liable for the amount specified in the agreement. His failure to perform the agreement would give her the right to sue him for any amount due her thereunder. It may be that his failure to perform is not wilful, and that both parties desire that the agreement continue in force. Certainly, when the agreement is pleaded, and its validity is not challenged, its provisions should be the sole basis for determining the relief to which plaintiff is entitled. Otherwise, such an agreement would be nothing more than a scrap of paper and no reputable lawyer would advise a-husband to execute one. Those who have had experience in the settlement of domestic problems for clients know that usually many matters other than the payment of support money are embodied in such agreements, and that to permit a-wife to repudiate the entire agreement and sue for separate maintenance in disregard of its provisions, without restoring the benefits she had received thereunder, would place her in a position to take an unfair advantage by obtaining allowances to which she would not be entitled under the agreement which she concedes to be valid and binding upon her.
It seems clear to me that the rule should be that when an agreement is pleaded, and its validity is not attacked, the relief to which the parties are entitled must be limited to its provisions, and that this should be the rule even though an attempt is made to scramble a cause of action for separate maintenance into the same complaint or cause of action in which the agreement is pleaded.
In the case before us, the 1937 agreement was the basic agreement between the parties. It provided, among other things, for plaintiff’s support and maintenance while living separate and apart from defendant. It made no provision for payment by defendant of any of the items which plaintiff asked the court to allow her in her application here involved. She claimed that the modification of this agreement which she executed in 1946 was procured by fraud, and is therefore invalid. She asks to have this modification set aside, but she makes no offer to restore the benefits she received pursuant to its provisions. Assuming that she may have the right to rescind the 1946 agreement, she is not attacking the 1937 *253agreement and the relief to which she is entitled must be determined by the provisions of the latter agreement if any effect whatever is given to section 175 of the Civil Code.
The majority opinion correctly states the problem involved herein as follows: “The question presented by this appeal therefore is: May a wife living separate and apart from her husband by agreement maintain an action under Civil Code, section 137, for permanent support and maintenance upon her husband’s failure to perform the agreement, if she does not also attack the agreement or seek to set it aside?”
Said opinion then states: “To establish her husband’s failure to provide for her support, therefore, it was essential that plaintiff establish a continuing duty to provide support by the allegation of an agreement in which ‘such support is stipulated. ’ The agreement preserves the husband’s duty of support and prescribes the terms upon which that duty may be discharged. . . .
“If the remedy of specific performance is available to enforce a contract made pursuant to Civil Code, section 159 (of., Sough v. Sough, supra, 26 Cal.2d 605, 611), the terms of the agreement would limit the judgment that could be entered. Such a judgment would be beyond the power of the court to modify thereafter, and plaintiff’s rights would be based upon the agreement and not upon the power of the court to order her husband to provide for her permanent support and maintenance under section 137. In an action on the contract plaintiff would not be entitled to temporary support or counsel fees pendente lite. Relief by way of specific performance would be inconsistent with relief under section 137 in that in the former case temporary support and counsel fees could not be granted and the court would be without power to vary the support provisions provided in the contract.”
The majority opinion concludes with the following statement: “Although plaintiff did not wish to attack the validity of the 1937 agreement and was willing to have it serve as a measure for the relief under section 137, she did not indicate that she wished the court to be bound by its terms. The transcript clearly indicates that the court and counsel were concerned solely with the question whether it was necessary for plaintiff to attack the 1937 agreement to establish jurisdiction for an award of temporary support and counsel fees. The decision of the court was not based upon the conclusion that plaintiff had elected to sue on the contract but upon the *254conclusion that on the allegations of her complaint no other remedy was available to her. If plaintiff is in fact seeking to maintain inconsistent actions, she can be required to elect between them. The election, however, must be made by plaintiff in the trial court and not by this court on appeal.”
As I analyze the majority opinion, it holds that if a valid contract exists between plaintiff and defendant she is bound by its terms, and the court would have no power to make an award to her granting her relief not provided for in the agreement, but since she did not state in so many words that she was standing on the agreement, but merely pleaded it for the purpose of establishing defendant’s obligation to her for support and maintenance and then asked for additional relief in the way of allowances not covered by the agreement, the court was powerless to do anything except consider her application for the additional allowances and render a decision on the merits to her application for such allowances. Such procedure, in my opinion, would amount to trifling with the court by permitting a plaintiff to blow hot and blow cold, depending upon the particular mood she was in at the time she presented her application. A more common sense view would seem to be that when she pleaded the agreement and did not attack its validity, she thereupon made an election to stand on it, and the relief to which she was entitled would have to be limited by its provisions. Since the majority opinion holds that if there is a valid and binding agreement existing between the parties “the court would be without power to vary the support provisions provided in the contract,” why should not the trial court be permitted to require plaintiff to take a position, as it did in this case, and she having refused to repudiate the contract, conclude that she was bound thereby and deny her any relief other than that provided for in the contract Í I respectfully submit that the majority opinion does not contain a satisfactory answer to this question.
The out-of-state cases cited in the majority opinion are of no persuasive authority in this state, for the reason that it does not appear that in any of those states was there a statute in any respect comparable to section 175 of our Civil Code, which is controlling here.
On the subject of election, this court held in the very recent case of Steiner v. Rowley, 35 Cal.2d 713 [221 P.2d 9], that a plaintiff made an election between a tort and contract action by the mere issuance of an attachment. Such holding was made notwithstanding the provisions of subdivision 3 of sec*255tion 537' of the Code of Civil .Procedure, that an attachment may he issued in á tort action where the defendant is amonresident of the state. It seems to me that such holding goes much farther than it is necessary to go in this case to hold that when plaintiff pleaded the 1937 agreement without attacking its validity, she thereby made an election to stand on such agreement and that the relief to which she was entitled should be limited by its provisions.
It, therefore, seems clear to me that if plaintiff is seeking to enforce the 1937 agreement, she is not entitled to support pendente lite, traveling expense, support and maintenance, costs, and attorney’s fees. (Lindey, Separation Agreements, § 26, p. 425.) If she is seeking to set aside both the 1937 and 1946 contracts, and suing for separate maintenance and support, she would be, in the discretion of the court, entitled to such relief (Civ. Code, § 137), pending the determination of the validity of the contracts. (Patton v. Patton, 32 Cal.2d 520 [196 P.2d 909].) A note in 7 So.Cal.L.Rev., 342, 343, states that it would seem that if the husband defaults on the agreement by failing to pay the monthly allowance, the wife’s remedy should be on the agreement. If she is suing to. enforce the 1937 agreement, it would seem that her rights are limited by that agreement, although to do so she must have the 1946 amendment set aside.
When the two sections (137 and 175 of the Civil Code) are read together it would appear that where the wife is living separate and apart from her husband by agreement, she has no cause of action for wilful failure to provide if the agreement does not provide for her support; if the agreement does provide for her support, then her remedy is limited to the enforcement of the provisions thereof. Plaintiff, therefore, may not seek to enforce the agreement and, at the same time, state a cause of action for separate maintenance under section 137 of the Civil Code and pray for support pendente lite, etc.
“Where the husband breaches the agreement, the wife can stand on her matrimonial rights and sue for alimony and counsel fees, or stand on her contract rights as any person who has made a contract with another, and forego the advantages of the matrimonial relation. She cannot do both; she must elect because the remedies are inconsistent.
“As a rule the election will be spelled out from the course adopted by the wife. If she sues for separation, she is deemed to have rescinded the separation agreement and may not later recover thereon . . . Conversely, if she sues for monthly *256payments under the contract, she elects to affirm it, and waives the right to repudiate it and ask for alimony and counsel fees. But a subsequent breach will revive her right of election.
“In view of the inconsistency already pointed out, it is clear that the wife cannot in one action sue for separate maintenance and for payments due under a separation agreement, nor can she maintain two separate concurrent actions for the same purposes.” (Lindey, Separation Agreements, 1937, §16, pp. 318, 321, and eases cited there.)
It would seem that plaintiff wife is here attempting to pursue, in one cause of action, two inconsistent remedies. (10 Cal.Jur., p. 1; 5 Cal.Jur., 10-Yr.Supp., p. 412, and cases cited.)
At the hearing in the trial court, it was admitted by plaintiff’s attorney several times that his client was seeking to enforce the 1937 agreement. This admission would seem to preclude the court from granting the interim relief sought since it appears that this is not a case where the plaintiff is seeking to set aside a contract and sue for alimony or for separate maintenance and allowance for costs and attorneys’ fees. She appears to seek relief based solely on the 1937 contract. From the foregoing, it should be clear that the 1937 contract stands in the way of any order, for plaintiff’s support contrary to or inconsistent with its provisions and that the court, properly, did not ignore its existence. (Patton v. Patton, 32 Cal.2d 520, 524 [196 P.2d 909]; Majors v. Majors, 70 Cal.App.2d 619 [161 P.2d 494]; Lindey, Separation Agreements, supra.)
I would, therefore, affirm the order of the trial court.