OPINION OP
FRBAR, J.While I concur in the conclusion of the Chief Justice, and in the general line of thought pursued by him, yet I desire to-síate my views somewhat differently, though I shall do so but briefly, inasmuch as he has so fully stated much of the law bearing upon the case. I shall consider in order each of the five questions which, in my opinion, must be decided in disposing of the exceptions.
First, the argument against plaintiff’s capacity to bring this action, based as it is upon a supposed absence of statutory authority for suits by a wife against her husband, is sufficiently answered by the mere statement of the fact that the action was brought neither by a wife nor against a husband, but by a widow, a feme sole, against certain third parties, executors.
Secondly, was there a sufficient consideration for the promise sued on, namely, that of Mons. Trousseau?
A consideration is to be distinguished from a condition, and a consideration consisting of a promise to perform is to be distinguished from a consideration consisting of performance.
*146In this case the contract is somewhat inartificially drawn, but it seems to be bilateral, consisting of mutual promises, those on each side being collectively the consideration for those on the other side. The consideration for Mons. Trousseau’s promises was apparently Madame Trousseau’s promise to discontinue her suit upon certain conditions and to forbear renewing proceedings upon certain other conditions.
There may be ground for argument that the instrument in question contains two or more unilateral contracts, Mons. Trousseau’s promises being considered as made upon condition that his wife should perform certain things, in which case upon her performance thereof the condition ripened into a consideration.
In either case his promises were made for a sufficient consideration — either her promise or her performance.
If the contract was bilateral, it is unnecessary to consider now how far the performance of each promise was dependent upon the performance of the other. If there' were two or more unilateral contracts, it is unnecessary to say, whether there was a sufficient consideration for her promises, for the suit is not brought on her promises, but on his. I am, however, of the opinion that there was ample consideration for her promises.
Thirdly, by what law is the validity of the contract to be determined so far as this depends upon the status of the plaintiff as a separated wife at the time the contract was made?
That the validity of a contract, in so far as this depends upon the nature or form of the contract itself, is governed by the lex loci contractus, is so well settled as to need no citation of authority — subject always, of course, to the qualification that the contract must not be immoral or unjust or injurious to the country or the citizens of the country in which rights under it are sought to be enforced.
But in so far as the validity of a contract rests upon the status of a party thereto, there is considerable diversity of opinion in respect to the law which should govern. The continental European jurists as a rule maintain that the lex domicilii should *147govern. In England the question seems to he somewhat unsettled. In the United States, there has been some leaning towards the European doctrine, as for instance, in Matthews v. Murchison, 17 Fed. Rep. 760, in which, however, the statement of the court that the lex domicilii controlled as to the ability of a married woman to contract, may perhaps be regarded as obiter dActmn, inasmuch as the locus domicilii in that case was also the locus contract/as. See also 3 Am. & Eng. Enc. of Law, 573. But it may now be considered as settled by the decided weight of authority and, it seems to me in consonance with the better reasons, that the lex loci contractus is generally to govern questions of capacity to contract as well as questions of the validity of the contract itself. See the leading case of Milliken v. Pratt, 125 Mass. 374, for a discussion of the authorities and a lucid statement of the arguments pro and con, by Chief Justice Gray, now a Justice of the Supreme Court of the United States. See also Ross v. Ross, 129 Mass. 243; Bell v. Packard, 69 Me. 105; Graham v. National Bank, 84 N. Y. 393; Nixon v. Halley, 78 Ill. 611; Wright v. Remington, 41 N. J. L. 48; Holmes v. Reynolds, 55 Vt. 39; Story, Conf. of Laws, Sec. 103; Whar., Conf. of Laws, Sec. 120.
Eourthly, in this case, which is the locus contractus, Erance or Hawaii, by the law of which the capacity of the plaintiff to make the contract in question should be determined?
The locus contracts, that is, the seat of an obligation, may be either the locus celebrationis or the locus solutionis, the' place where the contract is made or that where it is to be performed. Whether it is one or the other in any particular case is a question of fact rather than of law — a question chiefly of the intention of the parties. Eor the validity of “a contract is governed by the law with the view to which it was made.” In general in the absence of anything showing a contrary intention, the locus celebrationis is to be regarded as the locus contractus, but if the contract is to be performed elsewhere, this is' regarded as strong and in some cases conclusive evidence *148that the contract was made with reference to the lew loci sohbtionis. Eor a clear statement of the law and references to the authorities upon this phase of the case, see Pritchard v. Norton, 106 U. S. 124.
In the present case, I find that the contract was both made and to be performed in this country, and hence there is no occasion to consider any conflicting- views as to whether the lew loci celebrationis or the lew 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 pleadings.
The contract was executed by Madame Trousseau in Paris, June 10, 1882, and by Mons. Trousseau at Honolulu, July 13, 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 bilateral contract. And since it cannot have become a contract until there was a meeting of the minds of the parties, it must be considered as having 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 continue until execution by the other party. If there were two unilateral contracts, then there can be no question that the promise sued on, that is, Mons. Trousseau’s, was made here.
The pleadings also show that the contract was made here, for the agreement is described in the declaration as “made and signed by the said decedent on the 13th of July, A. D. 1882,” at which time the document was executed by him at Honolulu.
In the second place, the contract was to be performed here. On Madame Trousseau’s part, performance, namely, 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 Erench Consul here, though payable ultimately in Paris; failure on his part to pay 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 *149reacted Paris subsequently or not; in case of Ms departure from Honolulu, Ire was to notify tire Consul tere of Ms proposed new residence, and, presumably, continue to remit to tbe Consul here. It may be that the remote matter for the settlement of which this agreement was made was the decree of the French court, or some other matter having its seat in Prance, but this alone, if shown to be a fact, would not control the other circumstances 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 Hawaiian court.
Lastly, under Hawaiian law, in 1882, could a separated wife make a contract of this kind with her husband? It is provided in Section 1339 of the Civil Code that “Whenever a decree of separation is granted, the decree shall have the effect, during such separation, to reinstate the wife, whether the wrong-doer or not, in the right to sue or be sued, to alienate and convey property, to make contracts, and to do all other acts as if she were a feme sole.” The question is, whether this statute is to be construed as authorizing contracts with any person, according to the plain and natural meaning of the words, or as excepting by implication contracts with a husband.
The statutes elsewhere most similar to the statute now in question, and which have been the subject of judicial construction, are the so-called Married Women’s Acts. Under these acts there seems to be a great preponderance of authority in favor of the view that a married woman, even though not separated from her husband, may sue him in matters respecting her separate property, on the ground that such power to sue is necessary to secure to her the enjoyment of her property and effectuate the purpose of the statutes. The debt which was the basis of this agreement was the wife’s separate property, and therefore it would seem that she could sue,him for it. Oould she not equally well arrange with him for the settlement of the claim peaceably? Does the policy of the law require that a wife should enforce her rights against her husband by litigation rather than by agreement?
*150But to reason more directly, the Married Women’s Acts elsewhere generally authorize a wife to contract as a feme sole only with reference to her separate property. If, therefore, such acts authorize her to contract with her husband with reference to her separate property, it may logically be inferred in the present case that the statute • in question authorized the contract in question, not only because the subject matter of the contract was the wife’s separate property, but because our statute is broader in that it is not confined to contracts respecting separate property, and also because there is much more reason for allowing a separated wife to contract with her husband than there is for allowing one who is not separated to do so.
While there is much difference of opinion upon this point, yet the preponderance of authority, as well as the plain meaning of the words of the statute, and the policy of the law at its present stage, support the view that a statute authorizing a married woman to contract “as if sole” or “as a feme sole,” or “as if unmarried,” as variously expressed, authorizes her to contract with her husband. See Allen v. Hooper, 50 Me. 371; Savage v. Savage, 80 Me. 472; Albin v. Lord, 39 N. H. 196; Beard v. Dedolph, 29 Wisc. 126; Hamilton v. Hamilton, 89 Ill. 349; Tomlinson v. Matthews, 98 Ill. 178; Robertson v. Robertson, 25 Ia. 350; Williams v. Harris, 54 H. W. (N. D.) 926; In re Kinkead, 3 Biss. 405; Bank of America v. Banks, 101 U. S. 240.
The exceptions, therefore, should be sustained and the demurrer overruled.