DISSENTING OPINION OF
CIRCUIT JUDGE O’BRIEN.Amoy Zen, the plaintiff and wife of C. F. Zen, on July 30, 1920, instituted an action at law in the circuit court of the first circuit, against her husband and twenty-two others, as copartners doing business under the firm name of Honolulu Cracker Company, upon a promissory note in the sum of $4,000 dated March 6, 1916, payable to her order, and signed by T. M. Kon, one of the partners, on behalf of the copartnership.
The Honolulu Cracker Company, Limited, a corporation, was also joined as a party defendant, and it is alleged that the corporation was the successor in interest of said copartnership and covenanted in the partnership assignment, to wit, on June 26, 1918, that it would “pay and discharge all of said claims of what nature and kind soever properly chargeable to and against the former partnership.”
The defendants filed an answer of general denial and gave notice of the defense of illegality, fraud, release, payment and discharge. This answer was subsequently amended to include the further defense of coverture. During the trial, on the motion of the plaintiff, C. F. Zen, husband of the plaintiff, was stricken as a party defendant. After both sides rested, the court directed a verdict in favor of the plaintiff for the amount of the note, together with interest and costs. From this judgment the defendants sued out a writ of error to this court.
I cannot agree with the conclusion reached by the *376majority in this case. It is my opinion that in this jurisdiction a married woman cannot sue a copartnership in assumpsit on a promissory note • executed by the copartnership at a time when her husband was a member of the firm. Under our statutes, a husband and wife cannot contract with each other. The obligation of copartners upon a promissory note executed in the firm name is joint. Both these premises are conceded by the majority opinion.
In Edwards v. Stevens, 3 Allen 315, the supreme court of Massachusetts decided that a married woman could not sustain an action against partners of whom her husband is one to recover compensation for services performed for them. The court said: “The express power to contract with her husband is not given in terms and there is a strong implication from various provisions that it was not contemplated by the legislature. * * * As the plaintiff could not contract with her husband, she could not contract with the other defendants jointly with him. And the agreement of dissolution cannot bind them to pay a debt due to her from the firm, because no such debt had been lawfully created.” No doubt this decision is based upon the well established doctrine that the wife having lost her legal unity, she and her husband are one person in legal contemplation, and it would be absurd for a person to enter into a contract with himself.
In Clark v. Patterson, 158 Mass. 388, 33 N. E. 589, the same court held that a promissory note given by a firm to the wife of one of the partners for money loaned to him and used by the firm, is void as between, the original parties.
In National Bank of Rahway v. Brewster, 49 N. J. L. 231, the supreme court of New Jersey following the rule laid down in Massachusetts, uses the following language: “Plaintiff’s counsel insist that although the payees of the note, the firm of which the husband was a member, could *377not have sued the defendant at law upon the note, the endorsees may do so. This proposition is based upon the notion that the only reason why a suit at law could not be maintained against the maker upon such a note is that a husband cannot maintain an action against his -wife because of their unity in the law, and that therefore if the note be held by a stranger, the difficulty is overcome. But at law the contract between husband and wife is nnll and void and the defect is inherent in the contract which therefore cannot be enforced at law. In Gould v. Gould, 8 Stew. Eq. 37, affirmed Id. 562, a wife tent money to her husband’s firm upon their promissory note. After his death, she brought suit at law against the surviving members of the firm. She was non-suited and it was held that in order to recover the money she must have recourse to equity.”
Page on Contracts, Vol. 3, Sec. 1678, contains the following: “At common law a valid contract between husband and wife was impossible since the wife had no power to contract generally, and further the common law theory of the legal unity of husband and wife, one which in law had but one party. It was therefore unenforceable by either even after divorce or after the death of the other. * * “ Under this rule a note by a wife to a partnership of which her husband is a member, is invalid.”
The majority opinion is based upon the proposition that the contract in the case at bar is similar to a contract executed by a minor or an insane person, both of which are voidable. In my opinion, the contract in the case at bar is absolutely void and under no theory can it be given the effect of a voidable contract. No performance on either side can give the unlawful contract any validity or be the foundation of any right of action upon it.
White the courts refuse to permit an action to be maintained upon an unlawful contract, they have always *378striven to do justice between the parties as far as could be done consistently with adherence to law, by permitting property or money parted with on the faith of the unlawful contract to be recovered back or compensation to be made for it. In such cases, however, the action is not based upon the unlawful contract, but on an implied contract of the defendant to return, or failing to do that, to make compensation for money which he has no right to retain. To maintain such an action is not to affirm but to disaffirm the unlawful contract.
The authorities cited in the majority opinion all relate to contracts made by infants and the reasoning advanced therein does not apply to the case at bar.
Being of the opinion that the contract in this case is absolutely void, it is unnecessary to determine whether the defendant in error can maintain this suit against the Honolulu Cracker Company, Limited, upon its covenant to save the partners harmless and free from obligations due the partnership. If in this jurisdiction, a creditor cannot maintain such an action, this question goes to the jurisdiction of the court to render judgment against the Honolulu Cracker Company, Limited, one of the plaintiffs in error, and in my opinion may be raised under the general assignment of errors “that the verdict in said cause is contrary to the law” and “that the judgment is contrary to the law.”
In Kennedy v. Sniffen, 23 Haw. 115, Chief Justice Robertson, speaking of the general exception to the decision and judgment, uses the following language, at page 118: “Under the exceptions to the decision and judgment counsel for the defendant raise the point that the plaintiff failed to prove that he had presented his claim to the administratrix within six months from the date of the notice to creditors, and that the claim had been rejected and action brought thereon within two months thereafter *379as required by statute. The record does not show that this point was raised in the court below and it is admitted that it was not raised there. Counsel for plaintiff contends that the point may not be raised for the first time in this court. The defendant made no motion for judgment, nor for a new trial, and the exception to the decision was a general one. In McCandless v. Honolulu Plantation Co., 19 Haw. 239, 242, quoted with approval in Ripley & Davis v. Kapiolani Estate, 22 Haw. 507, 509, it was held that such an exception in a jury-waived case is too general to bring to this court a question of law which has not been called to the attention of the court below. This is in accordance with the well settled general rule that questions not properly reserved for review in the trial court will not be noticed on appeal. See 3 C. J. 689. There are some exceptions to this rule, one being that since the reason for the rule is to give an opportunity to avoid the effect of an objection, the rule does not apply where that could not have been done even though the point had seasonably been raised. 3 C. J. 740. In Territory v. Puahi, 18 Haw. 649, 655, the court noted that certain evidence could readily have been supplied had the objection been raised at the trial. New points, within the scope of the exception, may be presented. In Kalaeokekoi v. Wailuku Sugar Company, 18 Haw. 380, 385, the appellant at the suggestion of the court, urged a new ground in support of his exception to the granting of a non-snit. And in Godfrey v. Rowland, 17 Haw. 577, 585, the appellee was permitted to present a new ground in support of the judgment, the opposite party not having been misled at the trial by reason of the omission to there assert the point. In the case at bar, the plaintiff was not induced to withhold evidence because of the conduct of the defendant, and it does not clearly appear whether the plaintiff was able to prove that the claim was duly presented to *380the administratrix, and that the action was brought upon its rejection within the time allowed by statute. If the plaintiff is able to make the proof he will have an opportunity to do so upon another trial, while if he is unable to do so, he is not entitled to recover and ought not to complain at the reversal of the judgment. The rule as to the necessity of raising a question in the trial court cannot well be applied where the point is one which the party may not waive. Such is the case here. That the claim was rejected and action thereon commenced within two months were material facts to be alleged and proved in order to establish the plaintiff’s right to recover.”
The reasoning advanced in the above authority is applicable to the case at bar. In order to sustain the judgment of the court below an appellate court must be satisfied that the lower court had both jurisdiction of the parties and the subject-matter. The prevailing party in the court below cannot complain because the appellant failed to urge either of these objections in the court below. There are many cases where appellate courts review errors of this nature, though not assigned.
In 2 Ency. Pl. & Pr. 928, the following rule appears: “Fundamental errors. — Bnt although the court is not obliged to examine errors not assigned, generally it is permissible for it to do so in its discretion; and it usually does review jurisdictional and other fundamental errors apparent on the face of the record, though not assigned.”
For the foregoing reasons I am of the opinion that the judgment should be reversed.