The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-08

70 TI 900, NiAOn " HalIev,
70 IL 1li; Wrightv. Remington, Al
N. N: .: u: As; Holmes v. Reynolds, s.
WY WI os' story, Conf. of Laws. See. l03;
Wnar., Conf. OF Laws, Sec. 100.
fourthly, in this case, which is the
focus contrdctus, France or Hawaii.
Dy the law of which the capacity of
the plaintiff to make the contract in
question should he determined?
Inc locus contrdctus, that is. the
seat OF an obligation, NAV be either
the focus cetebrdtionis or the Locus
sotutionis, the place where the con.
tract Is made or that where it is 20 be
performed. Whether it il one or the
other In any particular case is a aues
tlon OF TACT rather than of lava uues.
tlon chiefly Of the intention of the par
ties. For the validity of "a contract
Is governed by the law with a view
10 whicn it was made.n In general
In the absence Of anything showing a
contrary intention, the locus celebra-
ttonis Is to be regarded as the locus
contractus, but If the contract is to he
performed elsewhere, this is regarded
as strong aud In some cases conclusive
evidence that the contract was made
with reference to the Ter loci soLu-
taonts. For a clear statement of the
law and references to the authorities
upon this phase of the case, see Pritch-
ard ". Norton, l06 U. S. 124
In the present case, l fiud that the
contract was both made and to be per
formed in this country, and hence
there is no occason to consider any
conflicting views as to whether the
ter loci celebrations or the ler loci
sOlutiOnis should govern for they are
identical in this case.
In the first place the contract was
made here. This is clear both from
the contract itself and from the plead
iDgs.
The contract was executed by Ma
dame Trousseau in Paris, June 10,
1882, and by Mons. Trousseau at Ho-
nolulu, July l3, 1882. But it must be
regarded as completed as a binding
contract at the same time and place,
at least, if it be considered as one bi-
lateral contract. And, since it cannot
have become contract until there
was a meeting of the minds OF the
parties, it must be considered as hav-
ing become binding at the time and
place where it was last executed, that
is, at Honolulu, the assent of the party
first executing being deemed to con-
tinue until execution by the other
party. If there were two uuilateral
contracts, then there can he no ques-
ton that the promise sued op, that is,
Mons. Trousseau's was made here
The pleadings also show that the
contract was made here, for the agree
ment is described in the declaration
as ''made and signed by the said de-
cedeDt on the 18th OF July, AID. 1882"
at which time the document was exc
cuted by him at Honolulu.
In the second place the contract was
to be performed here. On Madame
Trousseau's part, performance, name
ly, discOntinuance and forbearance,
was to take place here. On Mons.
Trousseau's part his admission of the
correctness of the claim against him
was made here; his payments were to
be made TO the French Consul
here though payable ultimately in
the Consul here is expressly
made a breach of the contract;
payment by him to the Consul
here would be performance on his
part whether the money ever reached
Paris subsequently or not; in case of
his departure from Honolulu, he was
to notify the Consul here of his pro-
posed new residence, aud, presuma
bly,, continue to remit to the Consul
here. 1t may be that the remote mat
ter for the settlement of which this
agreement was made was the decree
of the French Court, or some other
matter having its seat in France, but
this alone, if shown to be fact,
would not control the other circum
stances OF the case, while on the other
hand, the immediate matter for the
settlement of which the agreement
was made was the suit in the Hawai-.
ian Court
Lastly, under Hawaiian law, in
1882, could separated wife make a
contract of this kind with her nus
band? 1t is provided in Section 1889
of the Civil Code that "A henever a
decree of separation il granted, the
decree shall have the effect, during
such separation, to rtinstate the wife,
whether the wrong doer or not, in the |
right 10 sue or be sued, to ALLEVIATE
tbh tObNCy " tpAi
tracts, and to do all other acts as if
she were feme sole" The question
is, whether this statute is to be con
strued as authorizing contracts with
any person, according the plain and
natural meaning of the words, or as
excepting by implication contracts
with husband.
The statutes elsewhere most similar
to the statute now in question and
which have been the subject of judicial
are the so-cailed married
womeu's acts. Under these acts there
seems to be great preponderance OF
in favor OF the view that a
woman, even though not
separated from her husband, may sue
him in matters respecting her separ-
ate property, on the ground that such |
power To sue is necessary to secure 10
her the enjoyment OF her property and
effectuate the purpose OF the statutes. |
The deot which was the basis of this |
agreement was the wife's separate |
and, therefore, il would seem
that she could sue him for it, Could |
she not equally well arrange with him |
for the settlement of the claim peace
ably? Does the policy of the law re-
auire that wife should enforce her |
rights against her husband by litiga-
tion rather than by agreement?
But to reason more directly, the |
women's acts elsewhere gen
orally authorize wife to contract as
Il feme sole only with reference TO her /
property. II, therefore, such
acts authorize her 10 contract with |
her husband with reference to her