UNITED STATES of America, Appellant, v. Delbert L. YAZELL, d/b/a Yazell‘s Little Ages, and Ethel Mae Yazell, Appellees.
No. 21154.
United States Court of Appeals Fifth Circuit.
July 13, 1964.
334 F.2d 454
The Registrar and the State assert that error was committed by the admission in evidence of depositions and unauthenticated statistics. They also complain of the admission of proof of discrimination by the predecessors in office of the Registrar. Not having appealed, these questions are not properly brought before us by the appellees. As to the first of these contentions it need only be said that the hearing, at which the challenged evidence was received, was on an application for a preliminary injunction; not on final hearing. As to the second of these complaints, it can be observed that the admissibility of evidence of predecessors’ conduct has been approved. United States v. Atkins, 5th Cir. 1963, 323 F.2d 733. The appellees have moved to amend the order so as to relieve them of the costs of the proceeding which have been taxed against them by the district court. They urge that “all of the requests of plaintiff were rejected except that defendant was told not to discriminate in the future,” and hence the dissatisfied appellant should bear the costs. If this question can be raised in this manner, which we doubt, we would say that the order was proper, in view of the court‘s finding that an injunction was necessary to prevent discrimination, and in view of our disagreement with the district court‘s finding on pattern and practice. However, the matter of costs can be reviewed in its entirety on final hearing.
There is not now any reason why this case should not move with dispatch in the district court toward a final judgment at an early date. Additional evidence may, of course, be offered. The Dogan case, the third Lynd case,15 the Atkins case, the Ramsey case, and the Duke case, have all been decided since the entry of the order here on appeal, and the principles they announce will serve as a guide in the trial and decision of the cause.
We find no basis for putting the district court in error for its refusal to apply the freezing principle on the application for a preliminary injunction. Therefore the judgment from which the appeal is taken is
Affirmed.
William O. Murray, Jr., Asst. U. S. Atty., San Antonio, Tex., Sherman L. Cohn, J. F. Bishop, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Ernest Morgan, U. S. Atty., for appellant.
J. V. Hammett, Lampasas, Tex., for appellees.
Before HUTCHESON, PRETTYMAN,* and JONES, Circuit Judges.
HUTCHESON, Circuit Judge:
This appeal is by the United States from a judgment sustaining the appellee‘s defense of coverture on a note executed under a contract entered into under a federal program authorized by congress for the aiding of small business. The suit was against appellee and her husband, and the judgment against the husband is not appealed from. The sole issue was and is whether the law of Texas, where the contract was made, that a married woman is protected by coverture from personal liability upon a con-
The district judge, sustaining Mrs. Yazell‘s plea of coverture, followed Texas law as it has been uniformly declared:
“With the adoption of the common law as the rule of decision in this state, in 1840, our married women were rendered unable to bind themselves by contract. Kavanaugh v. Brown, 1 Tex. 481. And although by statute we retained the Spanish law rule that the wife can own property, our adoption of the common law meant that she can contract with respect to it or otherwise only for a purpose pointed out by law and only in such manner as our statutes may permit. Graham et al. v. Struwe (Struve) et al., 76 Tex. 533, 13 S.W. 381; Speer‘s Law of Marital Rights, 3rd Ed. Sec. 167, p. 226.” (emphasis added) Tolbert v. Standard Acc. Ins. Co., 148 Tex. 235 at p. 238, 223 S.W.2d 617 at 619.1
and the Texas law of coverture is the controlling law. This applies just as well to government groups and the United States as to anybody else. In short, this is not a case like the cases relied on by the United States of federal commercial paper issued by and as an obligation of the United States. This is a simple case of trying to hold a married woman liable on a contract which under the laws of Texas she was incapable of making, and the claim is no more reasonable than to hold that a minor, or one of unsound mind, could be held liable on a contract despite his disability merely because the United States was a party to it. There is nothing in this view, and we are in no doubt that the decision of the district judge should be affirmed.
The contention of the United States, that because the promissory note sued on
The district judge was right in his decision. His judgment is affirmed.
PRETTYMAN, Senior Circuit Judge (dissenting):
Mrs. Yazell and her husband, trading as a partnership, borrowed money from the Federal Government through the Small Business Administration. They signed a note for the loan. They also signed, as security for the loan, a chattel mortgage on the merchandise in their store. They could not pay, and the Government foreclosed on the security. A deficiency remained. The Government sued on the note, praying judgment for the balance of the loan. Mrs. Yazell moved for summary judgment on the ground that she is a married woman and so, in Texas, no personal judgment and no judgment affecting her separate estate can be rendered against her, with a few exceptions not here material. The District Court judge agreed with her, and so do my brethren on this court. I am contrari-minded.
A loan from the Federal Government is a federal matter and should be governed by federal law. There being no federal statute on the subject, the courts must fashion a rule. This is the clear holding of Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943).1
To effectuate the policy of the Small Business Act, loans of many hundreds of thousands of dollars each year to businesses must be made throughout the country. These loans can be made only under conditions which will reasonably assure repayment.2 I think the Act should be of uniform application throughout the country. If local rules are to govern federal contracts in respect to the capacity of married women to contract, so too should local rules as to all other features of contractual capacity govern such contracts. Chaos which would nullify federal programs for disaster relief would arise. And of course there is no reason to restrict this decision to loans under the Small Business Act. It would necessarily apply with equal force to every other federal program which involves contracts between the Federal Government and individuals. A multitude of programs will be frustrated by it.
It seems to me that, if a person has capacity to get money from the Federal Government, he has the capacity to give it back. The present lawsuit does not involve a general liability for debt; it involves merely the obligation to repay to the Government specific money borrowed from the Government. It seems to me that if a person borrows a horse from a neighbor he ought to be required to give it back if the owner wants it back, whether or not the borrower is a married woman. I suppose the Texas law, by nullifying repayments by married women, tends to minimize ill-advised borrowing. But I think the federal rule ought to be that you must repay what you borrow.
It seems to me that United States v. Helz3 was correctly decided by the Sixth Circuit and that it applies here. I would follow it.
PRETTYMAN
Senior Circuit Judge
Prettyman, Senior Circuit Judge, dissented.