United States v. Yazell, 21154.

• Decision Date: 13 July 1964
• Docket Number: No. 21154.,21154.
• Citation: 334 F.2d 454
• Parties: UNITED STATES of America, Appellant, v. Delbert L. YAZELL, d/b/a Yazell's Little Ages, and Ethel Mae Yazell, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

334 F.2d 454 (1964)

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.

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 contract, is controlling here, or whether, since the transaction was a transaction with the federal government, the Texas law of coverture is nullified and abrogated.

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 was payable to The Small Business Administration, the Texas law as above set forth is not controlling here, is completely unfounded, and we reject as without authority here the opinion of the Sixth Circuit, in United States v. Helz, 314 F. 2d 301, as we reject appellant's contention that the fact that the Small Business Administration is a party to the note sued on nullifies or has any effect on the incapacity of Mrs. Yazell to bind herself by contract.

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...