(dissenting).
Since it is an indisputable fact in the record of this and the former appeal that defendant treated plaintiff’s entry on active duty in the navy as automatically •canceling his contract, he was not called upon under the naval regulation in question to seek authority to perform services never tendered him. Restatement of the Law of Contracts, § 306. Nevertheless, the prevailing opinion proceeds to overturn a favorable judgment recovered by him following reversal and remand on the former appeal on account of a naval regulation noticed by the court of its own motion in considering that appeal. Such .an effect could only properly follow denial by Bureau of Naval Personnel of an application to it under the regulation for authority to perform services never tendered plaintiff because of defendant’s unwarranted contention that his contract was •canceled when called to active duty in the navy.
It is my considered judgment that the majority have appraised the situation confronting plaintiff upon being called to ■active duty with greater severity and harshness than did the Bureau of Naval Personnel itself in like situations in World War II, as shown by the testimony of Vice Admiral Jacobs taken by deposition on the second trial. The naval regulation was not even noticed by court or counsel on former trial. In such circumstances, it might well have been noticed here to support a judgment otherwise correct and presumed to be, Lockhart v. Wills, 9 N.M. 344, 54 P. 336; Lopez v. Townsend, 42 N.M. 601, 82 P.2d 921; State ex rel. Sanchez v. Stapleton, 48 N.M. 463, 152 P.2d 877, but in my opinion it was not noticeable as a ground of reversal since it was not a jurisdictional matter nor rendered the judgment inherently defective. Murry v. Belmore, 21 N.M. 313, 154 P. 705; Ashley v. Jones, 27 N.M. 34, 192 P. 479; State v. City of Albuquerque, 31 N.M. 576, 249 P. 242.
' It is my abiding conviction that the prevailing opinion imposes an undue and unnecessary hardship on service men and women called suddenly into the armed forces with uncompleted contracts for personal services of a nature they can still perform, as in the case at bar. As testified by Vice Admiral Jacobs, and found by the trial court, the naval authorities appreciated this situation and treated it with all leniency.
Under the majority view a writer of magazine articles, for instance, with a contract for two articles in a monthly publication, one of which he had supplied before entering the service, would be denied the right to complete the partly finished second article while off duty and receive his compensation without seeking and having authority of Bureau of Nava] Personnel. In my opinion such a construction of the rights of service men and women certainly is not compelled and, hence, should be avoided. Instead of seeking to soften hardships arising under existing contracts incident to service for their country,. it operates to make them more difficult and often times financially disastrous.
I dissent.