author: THORNBERRY, Circuit Judge:

text:
    RIEGEL FIBER CORPORATION, Plaintiff-Appellant, v. ANDERSON GIN COMPANY et al., Defendants-Appellees. RIEGEL FIBER CORPORATION, Plaintiff-Appellant, v. ELLIS BROTHERS et al., Defendants-Appellees.
    Nos. 74-2120, 74-2121.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1975.

      Bennett L. Kight, Charles A. Shanor, Atlanta, Ga., for plaintiff-appellant.
    Neal P. Gillen, Walter H. E. Jaeger, Washington, D. C., for American Cotton Shippers Ass’n, amicus curiae.
    Arthur Burns, James F. Hinton, Gadsden, Ala., for Baker Bros, and others.
    Jack W. Torbert, Gadsden, Ala., for Coley defendants.
    Hugh Reed, Jr., Centre, Ala., Frank M. Bainbridge, Birmingham, Ala., for Anderson and Ellis.
    Herbert D. Jones, Jr., Anniston, Ala., for Sharp and others.
    William J. Baxley, Atty. Gen., Myron H. Thompson, Asst. Atty. Gen., Montgomery, Ala., for State of Ala., amicus curiae.
    Before THORNBERRY, CLARK and ROSENN, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   THORNBERRY, Circuit Judge:

This appeal comes from a judgment entered pursuant to an order of the district court, sitting without a jury, granting appellees’ motion for involuntary dismissal of appellant’s case. The questions presented are, first, did the court correctly hold that certain contracts on which appellant brought suit failed to satisfy the Alabama statute of frauds, and second, did the court err in holding that appellant’s failure to qualify to do business in Alabama could not, consistently with the Commerce Clause of the United States Constitution, bar enforcement of its contracts. We answer no to both questions and accordingly reverse and remand.

I.

In late March 1973 Riegel Fiber Company, whose headquarters are in Trion, Georgia, entered into certain “forward” contracts for the sale of cotton with the Alabama ginner-defendants, Ellis Brothers and Anderson Gin Company. After negotiations the parties agreed on a price of $.32 a pound. Contract cotton was to come from two sources. The owners of the ginning companies grow cotton as well as gin it, and they agreed to sell Riegel a portion of their own contemplated production. To provide the major portion of the cotton called for by the contracts, however, the ginners had earlier entered into separate contracts with a number of individual Alabama cotton farmers, who promised to sell portions of their cotton production to Ellis and Anderson — also at $.32 a pound. These contracts were executed on forms provided to the ginners by Riegel, and it is undisputed that all the farmers knew that Riegel would be the ultimate buyer of their cotton. The commercial rationale for this sale and resale arrangement is not entirely clear, but nothing in the record contradicts Riegel’s explanation that it allowed the company to take advantage of the ginners’ familiarity with local farmers.

During the spring and summer of 1973 the price of cotton rose dramatically. By October 1973 the parties stipulated that the market price of the type of cotton called for by the contracts had reached $.81 a pound. As the Supreme Court has rather mildly put it, “This situation may generate a strong economic incentive for . . [the farmer] to breach his contract and sell the cotton elsewhere.” Allenberg Cotton Co., Inc. v. Pittman, supra, 419 U.S. at 26 n.8, 95 S.Ct. at 264 n.8, 42 L.Ed.2d at 202 n.8. When Riegel’s president first became aware of rumblings among the farmers, he went to Alabama and told them that Riegel intended to enforce its contracts. Learning later, however, that this warning had fallen on less than receptive ears, Riegel brought suit against both Ellis and Anderson seeking to have the contracts declared valid and asking that they be specifically enforced. These suits named as additional defendants the individual farmers whose production Anderson and Ellis had agreed to purchase and then re-sell to Riegel.

Upon appellant’s request, the district court entered a preliminary injunction directing the defendants to deliver to Riegel all cotton provided for by the contracts, conditioned upon Riegel’s posting a $1,725,000 bond to secure payment of costs, damages, and attorney’s fee in the event that the contracts were held invalid. Both sides concede that this injunction has been fully complied with. After the normal pretrial maneuvering by the parties, the trial judge ordered a separate trial, pursuant to Fed.R.Civ.P. 42(b), on the issue of whether Riegel’s failure to qualify to do business in Alabama barred it from suing on its contracts. At the conclusion of the hearing on that question the judge found that Supreme Court cases interpreting the Commerce Clause required him to hold that the Alabama qualification statutes could not be applied to Riegel on the facts presented. Subsequently, following a pretrial conference, the distract court entered an order setting the following issues for separate trial:

(a) whether the plaintiff is entitled to specific enforcement of the master contracts to the extent of the cotton produced by the ginner defendants (or voluntarily furnished to the ginner defendants by other farmers), this issue to include questions as to due execution of the master contracts, the enforceability thereof under Ala. UCC § 2-201 (formal requirements; statute of frauds) and § 2 — 302 (unconscionability, and the remedy of specific performance) including general principies of equity and problems of identification under Ala. UCC § 2-716.
(b) whether the individual contracts (assuming their validity otherwise) are enforceable under Ala. UCC § 2-201 and 2 — 302.
(c) whether the plaintiff has standing to enforce the individual contracts (if otherwise valid and enforceable), either under a theory of assignment, of third party beneficiary, or of being a party to the contract as a disclosed principal.

App. at 123-24. Trial began on December 26, 1973, and the next day the trial judge granted the defendants’ motion for involuntary dismissal at the close of plaintiff’s evidence pursuant to Fed.R. Civ.P. 41(b) (“on the ground that upon the facts and the law the plaintiff has shown no right to relief”). Stating his conclusions orally from the bench, the district judge held (1) that the Riegelginner contracts (the “master” contracts) did not contain a quantity term sufficient to satisfy the Alabama statute of frauds; (2) that integration clauses in the master contracts prohibited the court 'from looking at extrinsic evidence to aid in interpreting the contracts so as to render them valid and enforceable; and (3) that Riegel had no standing to enforce the contracts between the ginners and the farmers (the “individual” contracts). Appellant argues, and we agree, that each of these holdings is incorrect.

II.

For the sake of clarity we will first consider Riegel’s status with regard to the “individual” contracts. The district court rejected all three theories put forward by Riegel to establish its interest in those contracts: assignment, third party beneficiary, and enforceable “special property interest” as granted by U.C.C. § 2-501(1) and § 2-722(a). Because we think the evidence conclusively supports appellant’s right to enforce the individual contracts as a third party beneficiary, we do not pause to consider the merits of Riegel’s other theories.

In United States Pipe and Foundry Co. v. United States Fidelity and Guaranty Co., 5th Cir. 1974, 505 F.2d 88, 90 we noted that

Under Alabama law . . . for a contract to be considered made for the benefit of a third person “the contract must have been intended for the direct benefit of the third person, as distinguished from a mere incidental benefit to him.” Anderson v. Howard Hall Co., 278 Ala. 491, 493, 179 So.2d 71, 73 (1965).

Moreover, once it is established that a party is a third party beneficiary, he is fully entitled to enforce the promise made for his benefit. Anderson v. Howard Hall Co., supra, 179 So.2d at 72. The district court disposed of Riegel’s third party beneficiary argument with the following reasoning:

There is no basis for concluding that the plaintiff was a third party beneficiary of the individual contracts. They provide that the individual farmers were to sell to the ginner defendants with ultimate delivery at Trion in Georgia to Riegel Fiber Corporation, but by other terms of the same agreement it is made clear that that was to be a sale and a delivery to the ginner defendants. There is nothing that indicates in the contract that the ginner defendants would not have been free so far as the individual contracts with the farmers are concerned to have sold to some other manufacturer other than Riegel.

App. at 217 (emphasis added). The language that we have emphasized discloses the source of the lower court’s error. In Alabama, courts are not limited to the face of the writing when deciding whether the parties intended directly to benefit a third party; they may also hear evidence on the circumstances surrounding the making of the contract. Anderson v. Howard Hall Co., supra, 179 So.2d at 75; Mutual Benefit Health & Acc. Ass’n. of Omaha v. Bullard, 270 Ala. 558, 567, 120 So.2d 714, 723 (1960). Whatever information may or may not be derivable from the face of the individual contracts here, the pleadings and the evidence concerning the circumstances of the execution of these contracts leave no possible doubt that in substance Riegel was making a direct purchase from the farmers, with the ginners acting only as a form of accommodation party. Accordingly, we hold that appellant is entitled to enforce the individual contracts as a third party beneficiary thereof. The question remains, however, whether this right is of any value, since the district judge held that the master contracts failed to satisfy the Alabama statute of frauds and strongly implied that if necessary he would have reached the same conclusion concerning the individual contracts.

Our analysis begins, as did the district court’s, with Code of Alabama Title 7A, § 2-201, the UCC’s statute of frauds for the sale of goods. Section 2 — 201(1) provides:

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

As Official Comment 1 to § 2 — 201 notes:

Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be “signed”, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.

Appellees do not question that the detailed and signed written contracts involved in this case satisfy the first two requirements set out in the comment. Nor can they well deny that the writings contain, a quantity term, since they plainly do. Instead, appellees apparently argue that because the quantity terms included in the written forms are allegedly too indefinite to support enforcement of the underlying agreement, the writings in legal effect have no quantity term at all. Cf. Doral Hosiery Corp. v. Sav-A-Stop, Inc., E.D.Pa.1974, 377 F.Supp. 387, 389 — 90. Accordingly, appellees contend, the district judge correctly held that § 2 — 201 barred enforcement of the contracts.

To the contrary, we think that the lower court erred in relying on § 2— 201. The statute of frauds is only one of many potential barriers to the enforcement of agreements. As the language of § 2-201 reveals, the statute’s overriding purpose is “to indicate that a contract for sale has been made between the parties.” It is a device to prevent fraudulent and perjurious assertions of a contract where none in fact existed; the writing evidencing the parties’ contractual status need not, and often does not, state all the terms of the agreement. In the instant case the evidence is overwhelming and uncontradicted that the parties intended to and did enter into a contract. They reduced their agreement — in fact, as the district judge found, they reduced their entire agreement — to written form: the writings were signed, attested, and contained a quantity term. Moreover, for the limited purposes of meeting the technical statute of frauds requirement embodied in § 2 — 201 the accuracy of the quantity term is immaterial. Cf. West PointPepperell, Inc. v. Bradshaw, M.D.Ala. 1974, 377 F.Supp. 154, 158-59. Plainly, the real issue in this case is not whether these contracts satisfy § 2-201, but whether the quantity term in the agreement the parties undeniably made — as reflected in the signed writings — is too indefinite to support judicial enforcement. Section 2-201 itself does not purport to address this question. The unspoken assumption in that section is that when court and litigants turn to the writing for the quantity term, no dispute will remain that the statute of frauds has been satisfied; hence, the agreement is no different from any other contract to which the Code applies. Thus, for the applicable standards of definiteness in contract provisions we must have recourse to Code sections other than § 2— 201.

Appellant places principal reliance on U.C.C. § 2-306, which relates to output and requirements contracts and is the primary “gap-filler” in the Code for quantity terms. We need not reach the question whether these contracts fall within the reach of § 2-306, however, because we think appellant presented ample evidence that the quantity terms in the master and individual contracts — viewed as requiring delivery of various pounds of cotton — meet the standards of definiteness required by the Code for enforceability. Section 2-204(3) states the general rule:

Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

The official comment to this section adds that “commercial standards on the point of ‘indefiniteness’ are intended to be applied.” Thus, we view our inquiry as limited to the question whether these contracts contained quantity terms acceptable to the majority of buyers and sellers knowledgeable in the cotton trade.

Unfortunately, the parties directed their arguments more to technical contract doctrine than to the commercial reasonableness of the method used in these agreements to designate quantity. A review of the record, briefs, and argument of counsel convinces us, however, that the quantity terms as stated in the contracts can meet the Code’s test for definiteness. Significantly, the record is clear that appellees themselves supplied the actual quantity provisions on the forms tendered by Riegel. The individual farmers provided the farm numbers and the acres to be covered by their contracts. The ginner defendants totalled the acreage in the individual contracts, added their personal acreage, and inserted the resulting total acreage into the master contracts. The evidence shows no objections made by any appellee to the forms at the time the contracts were entered into; likewise, it reveals no attempt by appellees to insert what they now argue would be more definite terms, even though they clearly had the opportunity to do so. Moreover, although we do not give controlling weight to this factor, it cannot be ignored that appellees successfully identified and allocated contract and non-contract cotton when required to do so by the lower court’s injunction.

The district court relied heavily on the impossibility of determining from the face of the master contracts the specific fields covered by the agreements. The judge likewise expressed doubt that the individual contracts would help much in locating this precise acreage. Yet we find no evidence that any of the parties believe that such specificity is commercially necessary or even desirable. For its part, Riegel is apparently willing to rely to a large extent on the farmers’ good faith and commercial reasonableness in choosing which of their acres are to be used to grow contract cotton. Likewise, the record contains no hint of why the individual farmers or the ginners might prefer as a normal practice to contract as to rigidly specified fields. We think Riegel’s evidence clearly makes out a prima facie case that the quantity terms in the master contracts, as well as in the individual contracts, conform to acceptable practice in the cotton trade. Cf. R. N. Kelly Cotton Merchant, Inc. v. York, M.D.Ga.1973, 379 F.Supp. 1075, 1079, aff’d, 5th Cir. 1974, 494 F.2d 41; Taunton v. Allenberg Cotton Co., Inc., M.D.Ga.1973, 378 F.Supp. 34, 39; Mitchell-Huntley Cotton Co., Inc. v. Lawson, M.D.Ga.1973, 377 F.Supp. 661, 663. Consequently, the district judge erred in granting appellees’ motion for involuntary dismissal under Fed.R.Civ.P. 41(b). See Ingraham v. Wright, 5th Cir. 1974, 498 F.2d 248, 265, rehearing en banc granted.

III.

Appellees seek to support the judgment below on the alternative ground that the district court erred in concluding that the Commerce Clause of the Federal Constitution would be violated by a decision that Riegel’s contracts were unenforceable because of its failure to qualify to do business in Alabama. Appellant questions whether this issue is properly before us, because appellees took no cross-appeal assigning that ruling as error. However, since appellees seek no modification of the judgment of the lower court, no cross-appeal is necessary. “[I]t is . well established that the prevailing party below need not cross-appeal to entitle him to support the judgment in his favor on grounds expressly rejected by the court below.” Swarb v. Lennox, 1972, 405 U.S. 191, 92 S.Ct. 767, 773, 31 L.Ed.2d 138 (White, J., concurring). See also 9 J. Moore, Federal Practice H 204.11[2], at 930 (1973).

After the parties filed their briefs, but before oral argument in this case, the Supreme Court decided Allenberg Cotton Co., Inc. v. Pittman, 1974, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195. In Allen-berg the Court reviewed a decision by the Mississippi Supreme Court holding that a Tennessee-based cotton buyer’s transactions with a Mississippi cotton farmer were wholly intrastate .in nature and thus that the Commerce Clause was not violated by its decision that the buyer could not recover damages for breach of a contract to deliver cotton as a consequence of its failure to qualify to do business in Mississippi. The nature of the transaction involved in Allenberg was described by the Supreme Court:

Appellant is a cotton merchant with its principal office in Memphis, Tenn. It had arranged with one Covington, a local cotton buyer in Marks, Mississippi, “to contract cotton” to be produced the following season by farmers in Quitman County, Mississippi. The farmer, Pittman, in the present case, made the initial approach to Covington, seeking a contract for his cotton; in other instances Covington might contact the local farmers. In either event, Covington would obtain all the information necessary for a purchase contract and telephone the information to appellant in Memphis, where a contract would be prepared, signed by an officer of appellant, and forwarded to Covington. The latter would then have the farmer sign the contract. For these services Covington received a commission on each bale of cotton delivered to appellant’s account at the local warehouse. When the farmers delivered the cotton, Covington would draw on appellant and pay them the agreed price.

419 U.S'. at 22-25, 95 S.Ct. at 262-63, 42 L.Ed.2d at 199 — 200 (footnotes omitted). The Court noted that standard forward cotton contracts, like the one in the case before it, play a highly functional commercial role by helping to guarantee some measure of stability in the intricate interstate marketing mechanism for cotton. After reviewing some of its earlier cases construing the permissible reach of state regulation of interstate commerce, the Court concluded “that Mississippi’s refusal to honor and enforce contracts made for interstate or foreign commerce is repugnant to the Commerce Clause.” 419 U.S. at 32, 95 S.Ct. at 267, 42 L.Ed.2d at 205.

We have carefully examined each point urged by appellees in their attempt to distinguish this case from AUenberg. We are not convinced, however, that any slight factual variations present here are significant for purposes of the Commerce Clause. In AUenberg the Supreme Court manifested a special concern for the integrity of the “vast system of distribution of cotton in interstate commerce.” There can be no dispute that the contracts in the case before us are part of that system. Consequently, we hold that the district court properly concluded that denial of Riegel’s right to enforce these contracts because of its failure to qualify to do- business in Alabama would violate the Commerce Clause.

IV.

Because the district court erred in granting appellee’s Rule 41(b) motion, we reverse its judgment and remand this case for further proceedings. Although the defendants must of course be allowed to present their evidence, the district court need not compel Riegel to offer again the evidence it has already introduced. Nevertheless, plaintiff should be allowed to supplement the present record, in chief or by rebuttal, with any evidence that could properly have been admitted at the first trial of these issues. See Ingraham v. Wright, supra, 498 F.2d at 265; White v. Rimrock Tidelands, Inc., 5th Cir. 1969, 414 F.2d 1336, 1340 & n. 7; 5 J. Moore, Federal Practice ¶ 41.13[2], at 1152 (1973).

Reversed and remanded for proceedings consistent with this opinion.

      . The Supreme Court has recently explained the function of “forward” contracts in the agricultural commodity market. Allenberg Cotton Co. v. Pittman, 1974, 419 U.S. 20, 26-29, 95 S.Ct. 260, 264-65, 42 L.Ed.2d 195.

      . No crops were planted by any of the appellees here until some time in April, 1973.

      . In fact, the forms used for the ginner-farmer contracts were identical to the forms used for the Riegel-ginner contracts.

      . Riegel originally brought separate suits against Anderson and Ellis, but they were consolidated for trial and appeal.

      . We see no need to rehash the evidence demonstrating the parties’ understanding of the true nature of these transactions. Instead we merely note, first, that the ginners made no profit on the contracts with the farmers and second, that they testified that the farmers understood that Riegel would be the ultimate buyer of the cotton. As the district court found when discussing the Commerce Clause issue, the ginners’ role might be characterized as “in the nature of a common or joint agent or broker.”

      . Title 7A, § 2-105(1) provides in part that: “ ‘Goods’ also includes . . growing crops.” Unless otherwise noted, all references to the Uniform Commercial Code will be to the Alabama version.

      . Typical is the Riegel-Ellis contract:
      1. On the terms and conditions and at the prices set forth below, Buyer agrees to purchase and take delivery from Seller, and Seller agrees to sell and deliver to Buyer, all the acceptable cotton produced during the crop year 1973 on the following acreage, and none other:
      No. of Farm Allotment Projected Acres No. County in Name Of Yield 1973
      4,222 Cherokee Various 500 Lbs. Per & Calhoun Acre Counties, Alabama

      . We do not dispute the accuracy of most of the facts found by the district judge. Our disagreement goes primarily to the legal conclusions he draws from those facts and to his failure to make findings on certain matters we think significant under a correct view of the law.

      . See Port City Construction Co., Inc. v. Henderson, 48 Ala.App. 639, 266 So.2d 896, 900 (1972); U.C.C. § 2-201, comment 1; 2 Corbin, Contracts § 498, at 680-81 (1950).

      . Although at some places in their pleadings and testimony appellees refer to “alleged” contracts, a careful reading of their answers and the evidence compels the conclusion that they admitted making these contracts within the meaning of § 2-201(3)(b):
      A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable .
      (b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted
      Nevertheless, appellees clearly made no separate admissions concerning the quantity stated in the contracts, so the final clause of § 2— 201(3)(b) is of no aid to us here. Consequently, appellees’ admissions simply reinforce the conclusion that we also derive from looking at the writings alone; i. e. that this case has nothing to do with the statute of frauds.

      . “The only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated.” § 2-201, comment 1. That is, the litigant seeking to enforce the contract bears the risk if the writing entitles him to less than he and his opponent actually agreed upon, see White & Summers, Handbook of the Law Under the Uniform Commercial Code § 2 — 4, at 54 (1972), but such inaccuracy does not alone make the writing insufficient for purposes of the statute. White and Summers plausibly suggest that the language of § 2-201 itself, as opposed to the comments, can be read to require no quantity term at all. Id. at 51 n.44. Under this reading any quantity term in the writing would control, but if no such term were present the party seeking enforcement could establish it by parol along with all the other provisions of the agreement. Indeed, the quantity term requirement does appear to offer little in aid of the primary purpose of the statute, i. e. discouraging fraudulent oral assertions of nonexistent contracts. Once a party alleges that the agreement took place and proffers a signed writing to prove it, surely he is no more likely to lie about the agreed quantity term than about price, time of performance, or any other material term that § 2-201 expressly allows to be omitted from the writing. Nevertheless, the Code’s authors apparently thought it necessary to protect parties against this one brand of perjury. Id. at 52-53. In any event, appellees do not contend that the “amount stated” in the writings is definite and that Riegel is attempting to force them to sell more than that amount.

      . Cf. Cox v. Cox, 292 Ala. 106, 289 So.2d 609 (1974).

      . In two recent cases involving cotton contracts substantially similar to those involved here, the Georgia Supreme Court relied upon § 2-306 in rejecting the growers’ contentions that the agreements were too indefinite to be enforced. R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 214 S.E.2d 360 (1975); Harris v. Hine, 232 Ga. 183, 205 S.E.2d 847 (1974). See also Port City Construction Co., Inc. v. Henderson, supra, 266 So.2d at 900; Owens v. Clow Corp., 5th Cir. 1974, 491 F.2d 101, 103 n. 2 (applying Alabama law).

      . Riegel points out that simply by multiplying the number of acres stated in the contracts times the estimated yield, one derives a quantity term stated in pounds of cotton. Furthermore, citing U.C.C. § 2-306(1), the company contends that any slight variation in yield from acre to acre is immaterial, since in no event would the contract be enforceable beyond a quantity not unreasonably disproportionate to the estimated yield stated in the contract. Although § 2-306(1) concerns output and requirements contracts, we think that the Code’s general good faith provision, U.C.C. § 1-203, accomplishes the same result here where a contractual quantity is subject to “natural” variations. Section 1-203 would also help obviate any difficulty with those individual contracts where no estimated yield is stated.

      . We have already held that the two “levels” of contracts involved here can be viewed only as different parts of one contractual transaction. Any imprecision in the master contracts regarding which farmers have bound themselves through Anderson and Ellis to sell to Riegel was resolved by introduction of the individual contracts and by the testimony adduced at trial. This evidence was admissible both to explain the quantity terms in the master contracts and to allow Riegel to prove its interest in the individual contracts. Neither the parol evidence rule nor the so-called merger or integration clauses in the contracts affect the admissibility of the evidence. The parol evidence rule, except in certain circumstances, forbids the parties to supplement the terms stated in the writing evidencing the contract. It does not, however, forbid the admission of extrinsic evidence to explain the meaning of words contained in the writing. See Port City Construction Co., Inc. v. Henderson, supra, 266 So.2d at 900; Marbury-Pattillo Constr. Co., Inc. v. Bayside Warehouse Co., 5th Cir. 1974, 490 F.2d 155, 159 (applying Alabama law); 3 Corbin, Contracts § 579, at 412-13 (1960). The line between explanation and supplementation is narrow and occasionally difficult to draw, but in this case it is clear that plaintiff offered its evidence for the former purpose and not for the latter. The trial judge seemed to recognize this, but felt that the integration clauses nevertheless required him to refuse to consider the evidence. These clauses state in bold print:
      BOTH PARTIES HAVE CAREFULLY READ AND FULLY UNDERSTAND THE TERMS AND PROVISIONS OF THE FOREGOING CONTRACT, WHICH REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND FURTHER UNDERSTAND THAT THERE MAY BE NO MODIFICATION OF THIS CONTRACT EXCEPT IN WRITING.
      Again, however, this language on its face only prohibits the parties from introducing evidence modifying the writing to which they have agreed; it does not bar evidence explaining the words used or the circumstances surrounding execution of the contracts. See 3 Corbin, Contracts § 539, at 77-78 (1960). We have been cited to no cases suggesting that Alabama courts would refuse to admit evidence offered to aid in the interpretation," as opposed to the modification, of “integrated” contracts.

      . As the Court of Claims recently noted, “The law rejects post facto claims that agreements are too indefinite for enforcement, where the parties knew what each of them was to do under the contract and some standard exists to measure performance.” Saul Bass & Associates v. United States, Ct.C1.1974, 505 F.2d 1386, 1394. Appellees’ readiness to execute these agreements is strong evidence that they knew what they had to do to meet their contractual obligations.

      . There is little reason for them to do otherwise. Quality control is taken care of by the provision that Riegel will buy only “acceptable” cotton, as carefully defined in the contract. In addition, by stating quantity in terms of pounds or bales of acceptable cotton Riegel arguably avoids any hazards created by the varying productivity of specific fields.

      . Appellees have pitched almost their entire argument on “unique” technical faults allegedly present in the particular arrangements chosen by Riegel here. They offer little to buttress their argument except hypothetical showing a supposed lack of mutuality in the agreements. When asked directly at oral argument whether it is commercially important to know the specific fields covered by cotton contracts, counsel for the farmers responded only that it was important to these contracts. Significantly, the testimony of Mr. Ellis revealed with regard to his individual cotton acreage that (1) he had no specific fields in mind when he signed the contract; (2) he never designated any fields as “contract” acres; (3) his intent when contracting was to sell half of his production; and (4) when his production turned out to be less than he anticipated, he nevertheless delivered under the contract half of the cotton he did produce without protest on Riegel’s part. Appendix at 169-71.
      We admit to some confusion concerning why the column for farm numbers was inserted into the form contracts if Riegel intended only to obtain a given quantity of cotton; that object could have been achieved by specifying only the number of acres and the estimated yield. Although the record is not entirely clear, we think that one plausible explanation is that Riegel’s forms were drawn to allow a stricter contract than Riegel in fact required of the farmers. That is, Riegel could have contracted as to specific farms but preferred a more flexible arrangement. See note 17, supra. This theory is bolstered, we believe, by certain facts brought out at trial. Riegel obtained the completed individual contract forms from Ellis and Anderson only when preparing for this litigation. Presumably, then, if the ginners had delivered the quantity of cotton required by the master contracts, Riegel never would have known on which exact farms the cotton was produced. Second, the following testimony of Mr. Ellis, one of the ginner-defendants, suggests the possibility that the farmers may have provided the farm numbers only because they believed the forms required it of them:
      Q.: How was the information pertaining to each of the side [individual] contracts . that is the filling in of the blanks, how was that done?
      A.: You’re referring to the farmer’s name, the farm number, the acres?

        Q.: Yes, sir.
      A.: The individual farmer gave that information. . .
      Q.: All right, sir. Did you have any source of that information other than from the farmers themselves?
      A.: No, sir.
      Appendix at 172. Of course, we need not decide whether the farmers could on these facts supply Riegel only with cotton grown on the farms specified in the individual contracts, but we do think it significant that appellees do not contend that the written contracts required them to sell more cotton to Riegel than they subjectively intended.

      . We take this opportunity to express again our dissatisfaction with the inconvenience that results from a promiscuous use of Rule 41(b) dismissals. See White v. Rimrock Tidelands, Inc., supra, at 1340. Except in unusually clear cases the district judge can and should carry the defendant’s Rule 41(b) motion with the case — or simply deny it, since the effect will be the same — let the defendant put on his evidence, and then enter a final judgment at the close of the evidence.


source: Caselaw Access Project

author: C. WILLIAM KRAFT, Jr., District Judge.

license: Public Domain

text:
    Patricia D. DUFFER, Plaintiff-Appellee-Cross-Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant-Cross-Appellee.
    No. 74-2037.
    United States Court of Appeals, Fifth Circuit.
    May 12, 1975.

      E. Lawrence Merriman, Texarkana, Tex., for defendant-appellant-cross-appellee.
    Dale Edwards, Texarkana, Tex., for plaintiff-appellee-cross-appellant.
    Before WISDOM and DYER, Circuit Judges, and KRAFT , District Judge.

       Senior District Judge of the Eastern District of Pennsylvania, sitting by designation.

   C. WILLIAM KRAFT, Jr., District Judge.

American Home Assurance Company (insurer) here appeals from an adverse judgment obtained by Patricia D. Duffer (beneficiary) in her suit upon a group travel insurance policy issued by the insurer to Temtex Leisure Vehicles, Inc., a subsidiary of Temtex Industries, Inc. (employer), covering all the employer’s officers, managers and sales personnel under age seventy.

The beneficiary had been so designated by her husband, E. C. Duffer, III (insured), who was killed in a motor vehicle collision on November 27, 1972. At the time of his death the insured was Controller of the employer and, so, an insured subject to the terms of the policy then in force, the provisions of which presently pertinent appear below. The insurer’s appeal challenges numerous findings of the trial court, to which the case was tried without jury. The beneficiary’s limited cross appeal raises a single question. In this diversity action the law of Texas governs these questions.

Insurer’s first contention is that the trial court erred in finding that the insured was, at the time of his death, “on assignment by or at the direction of the” employer, within the meaning of the policy definition. The evidence of the nature of insured’s position as Controller and the testimony of Marry Ward were sufficient to support this finding.

The next contentions of the insurer are that the trial court erred in finding that, at the time of his death, the insured was engaged in travel: (a) “for the purpose of furthering the business of . ” his employer; (b) but was not engaged in “the course of every day travel to and from work . . . ”; “on the business” of his employer; (d) and was in “the course of a ‘bona fide trip.’ ”

The facts so found by the trial court are ultimate facts and it becomes necessary to examine the trial testimony to determine whether that was sufficient to have permitted the trial court to have found, directly or by reasonable inference, underlying facts essential to support the ultimate facts so found.

Our review discloses that insured had a bachelor’s degree in finance and accounting and was continuing study to be certified as a CPA. After army service, he was first employed as an accountant by the predecessor of Monnfield Industries. When the latter was acquired by Temtex Industries, as a subsidiary, he remained and was promoted to Assistant Controller. Later, about April 1, 1972, he was offered and accepted the position of Controller of Temtex Leisure Vehicles, Inc., another subsidiary of the same corporate parent. Between April and July, 1972, insured travelled about 130 miles daily between his home in Garland and his work outside Malakoff, Texas. During that period, because his new employer was getting into production in a new plant, he worked long hours and seldom came home to dinner. In early July he moved to a mobile home in Athens, Texas, about 8 miles from his work, while building a new home in Malakoff, into which he moved in September, 1972. His new home, where he resided until his death, was between 3 and 4 miles from his work. His long hours of work continued until early November 1972, when the employment of a new General Manager and an accountant-bookkeeper materially lightened his burden. Thereafter his usual hours of employment at the plant were 8:00 A.M. to 5:00 P.M. and, generally, he left home around 8:00 A.M. and returned around 6:00 P.M. On occasion, but not regularly, he would return to the plant in the evening to do additional work. On Monday nights it was his custom, in season, to watch Monday Night Football at home at 8:00 P.M.

Claude Smart, Purchasing Agent of the employer, had his office near the insured’s office. Neither Smart nor the insured then routinely returned to employer’s plant for additional work in the evening, though, occasionally, they did so on special assignments or when unusual circumstances indicated such need.

In the afternoon of Monday, November 27, 1972, an audit in process and an inventory taken having disclosed a shortage of materials, Smart and the insured discussed the problem and agreed to return to the plant together that evening to search for the missing material and, if unsuccessful, to prepare to take another inventory. Later, as they left employer’s building, they decided to go home together, dine, go to feed deer and then return to the plant. However, they encountered Mrs. Smart in the employer’s parking lot. She wanted her husband to go with her to meet a realtor and to look at a house with a view to possible purchase. Smart and the insured then changed their plans. They agreed that Smart should go with his wife, look at the house, get a sandwich nearby and be picked up later by the insured at the realtor’s parking lot; that insured would go home, dine and pick up Smart at the realtor’s parking lot. The insured drove home but did not dine, because his wife and one child were ill and dinner had not been prepared. After a short interval he left his home, intending to pick up Smart at the realtor’s parking lot. The pick-up of Smart would have required a deviation of about one mile from the direct route between insured’s home and the employer’s plant. Insured intended to then go with Smart to the employer’s plant for the purpose previously agreed. Whether the insured and Smart would have gone first to feed deer is uncertain, because the deer feeding and observation required sufficient daylight to see whether food previously left had been touched and to note the number of deer tracks in feeding area. En route from his home to the realtor’s office the insured met his death in an auto collision about 6:00 P.M.

We conclude that this testimony, uncontradicted for the most part and accepted as credible by the trial court, was sufficient to have permitted the trial court to find the underlying facts supportive of the ultimate facts it found, Certainly, its ultimate findings were not clearly erroneous.

The insurer strongly presses its argument that the travel in which decedent was engaged at the time of his death was “every day travel to and from work,” which, under the policy definition, “shall not be deemed to be while on the business of . . . ” the

employer. The trial court found this language to be ambiguous and, so, construed it most favorably to the beneficiary. On this score we disagree both with the insurer and the court below. Had the policy intended to exclude all travel to and from work or all travel between home and place of employment it eould have done so simply. The modifying words “every day” before the phrase “travel to and from work” cannot be disregarded as meaningless, but must be given their plain, ordinary and generally accepted meaning. Western Reserve Life Insurance Company v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953).

In the context of the policy provisions we opine that the phrase “every day travel to and from work” means travel between the insured’s home and his regular place of employment for the sole purpose of reaching either destination on days and at hours normally related to his regular hours of employment. We approve the finding of trial court, because it is evident that insured’s intended travel to his place of regular employment on this Monday evening was after he had completed his normal hours of employment and had returned to his home, where, ordinarily, he would have remained to watch a football game on television. His travel to meet and pick up the purchasing agent, Smart, was for the purpose of endeavoring to ascertain the cause of an inventory shortage, scarcely an every day event, which had only been discovered that afternoon. Moreover, in going from his home to pick up Smart, the insured was obliged to deviate about one mile from his usual direct course to his employer’s plant.

Counsel have cited no Texas cases construing this or substantially similar language. Insurer’s counsel has cited two federal district court cases with which we do not disagree.

Morningstar v. Insurance Company of North America (D.C.S.D.N.Y.1969), 295 F.Supp. 1342, dealt with a policy, which provided “commutation travel is excluded from coverage.” Recovery was there permitted for the death of the insured, who usually commuted between his home and his office, but who, on the morning of his death, deviated from his normal route to go to the office of General Foods for a business purpose while en route to his own office. The court decided that the insured’s deviation, for a business purpose, prevented his trip from home to office from being commutation travel.

Ligo v. Continental Casualty Company (D.C.W.D.Pa.1972), 338 F.Supp. 519, involved a policy which contained a provision excluding “everyday travel to and from work.” There, too, recovery was permitted for the death of an insured, who left his home in the morning for his work at the main office of his bank employer, but deviated from the usual course of travel to pick up certain items at a branch bank for delivery at his place of employment, as directed by his employer. He was killed en route to the branch bank. The court held the trip did not constitute everyday travel to his work, because the trip required that deviation.

The following language used by the court in Ligo, supra, is urged upon us by the insurer: “The exclusion ‘everyday travel to and from work’ was intended to apply to one travelling from his home to his plac.e of regular employment for the sole purpose of reaching his place of regular employment. Where there is any deviation for a business purpose, the exclusion does not apply.” This language must, of course, be read in light of the question before that court, which did not involve travel for a special business purpose in the evening after the insured’s return home upon completion of his regular day’s work. In the case before us, too, there was deviation from the direct route between home and office to pick up the purchasing agent, whose presence was essential to the solution of the employer’s inventory shortage problem.

Insurer next contests the allowance by the trial court of the statutory twelve per cent penalty and of an attorney’s fee to the beneficiary. Insurer points out that the trial court found that the insurer “ . . . (h)ad reasonable grounds and acted in good faith in denying Plaintiff’s claim and in defending the case . . . ” and insists that this finding precludes both allowances. We reject insurer’s contention.

The Texas statute succinctly makes the insurer’s failure to pay, within thirty days after demand, the keystone of liability for twelve per cent damages and attorneys’ fees. It is notably silent about any other criteria, such as insurer’s action in good faith or reasonable grounds for failure to pay. This court, citing Texas cases, said, in Lumbermen’s Mutual Casualty Company v. Klotz (5 Cir. 1958), 251 F.2d 499, 509, that the Texas statute, unlike some others “ . . . (i)s not a ‘just cause’ or ‘reasonable cause’ penalty statute. Where the 30-day demand has been made, the penalty is due if the Insurer is ultimately held liable on the policy no matter how justifiable was the basis for its unsuccessful defense of non-liability.”

The two cases cited in support of insurer’s argument are inapposite. Texas Reserve Life Insurance Company v. Dees (Tex.Civ.App.), 368 S.W.2d 886 did not decide that question. In affirming a judgment for the statutory penalty and attorney’s fee it used language from which, at best, it might be implied that just cause for failure to pay might be a defense. Great National Insurance Company v. Legg (Tex.Civ.App.), 444 S.W.2d 324, upheld the action of the trial court in granting judgment N.O.V. for the insurer on the issue of penalty and attorney’s fee, on the ground that the “forwarding proofs of death or the filing of suit does not constitute a demand within the meaning . . . ” of the statute.

The insurer also asserts that the evidence was insufficient to permit a determination of a reasonable counsel fee by the trial court. We find the evidence was adequate for this purpose.

The trial court awarded the beneficiary $100,000, the amount of her loss under the policy, $12,000 damages under the Texas statute and attorney’s fee of $6,000, a total of $118,000 with interest from November 26, 1973. Insurer contends that the interest allowance is erroneous, in that: (a) interest on the $12,-000 damages should not be allowed before the entry of judgment; (b) interest on the $6,000 attorney’s fee should not be allowed; (c) interest on the $100,000 should not be allowed before the entry of judgment. Beneficiary, on her cross-appeal, asserts to the contrary, that interest should have been computed on the $100,000 from the date of her loss.

Confusion appears to have arisen from the fact that the trial court, at the conclusion of the trial on November 26, 1973, expressed its intention to render judgment in the beneficiary’s favor for the amount of the policy ($100,000) with interest at 6% from the date of the insured’s death and to refuse any award of the 12% penalty or of the counsel fee and thereupon indicated that the court would make its actual findings of fact and conclusions of law later. The fact findings and legal conclusions were filed on January 18, 1974, together with the judgment, which, contrary to the trial court’s earlier declaration, allowed recovery for the beneficiary’s loss, the twelve per cent penalty and an attorney’s fee together with interest on the total of $118,000 from November 26, 1973.

We hold that the trial court’s oral expression of future intention on November 26, 1973 was not a judgment and that judgment was entered on January 18, 1974. Accordingly, we disregard November 26, 1973 for all purposes of determination of interest.

We first consider whether the beneficiary is entitled to recover any interest on any sum at 6% per annum from any date before the entry of judgment. The insurer’s contention that no interest was claimed is without merit. The beneficiary’s complaint expressly included a claim for “interest at the legal rate.” The Vernon’s Texas Revised Civil Statutes, Article 5069-1.03 provide:

' “When no specific rate of interest is agreed upon by the parties, interest at the rate of six per cent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable . . . .”

The insurer’s policy was a written contract which provided that the sum payable on death of insured was $100,-000, which was claimed and determined to have been due and payable January 10, 1973. We hold that the beneficiary was entitled to recover interest at the rate of 6% per annum on $100,000 from the date claimed, January 10, 1973 (when the insurer gave notice of rejection of the beneficiary’s claim for payment after timely receipt of the required proof of loss) to January 18, 1974. Federal Life Ins. Co. of Chicago v. Kriton (Com. of App. of Tex.), 112 Tex. 532, 249 S.W. 193; Combined Insurance Company of America v. Kennedy (Tex.Civ.App.), 495 S.W.2d 306.

We hold, further, that the insurer is not liable for any pre-judgment interest on the $12,000 damages or the $6,000 attorney’s fee, because both liabilities arise entirely from the operation of the Texas statute, supra, and not from the insurance contract.

The question then arises whether the attorney’s fee should .be included in the judgment or separately taxed as costs. The explicit language of the statute, “Such attorney’s fee shall be taxed as a part of the costs in the case” would seem to leave no room for doubt, but the Texas courts have divided on the question. In Reserve Life Insurance Company v. Miller (Tex.Civ.App.), 300 S.W.2d 343, 349, the court affirmed the action of the trial court in taxing the attorney’s fee as costs and held that the balance of the judgment bore interest at 6%. However, in American Nat. Ins. Co. v. Mays (Tex.Civ.App.), 97 S.W.2d 975, 976, the court, taking the opposite view, said:

“We regard the statutory obligation to pay an attorney’s fee as damages awarded beneficiaries of life insurance policies to reimburse them for expenses necessarily incurred in employing attorneys to enforce payment of such policies. As such the judgment for same should bear the statutory interest as provided in article 5072, R.S.”

In Republic National Life Insurance Company v. Beard (Tex.Civ.App.), 400 S.W.2d 853, the court, noting the opposing views expressed in two cases previously cited but offering no reason for its action, held that the trial court properly awarded interest from the date of judgment both upon the penalty and upon the amount allowed for attorneys’ fees. International Security Life Insurance Company v. Spray (Sup.Ct.Tex.), 468 S.W.2d 347 mentions, but does not decide whether an attorney’s fee should be a part of the judgment or taxed as costs. That question was not raised on the appeal. It is authority only for the propositions that (a) the attorney’s fee recoverable under the statute includes attorney’s fee for appellate services; (b) the award of an attorney’s fee is a fact issue for the trial court; (c) the better practice is to allocate attorney’s fees for appellate work only if the work is actually done.

Absent a controlling decision by the Texas Supreme Court we elect to follow Reserve Life Insurance Company v. Miller, supra, in view of the unequivocal language of the statute and hold that the inclusion of the $6,000 attorney’s fee in the judgment of the court below was error. This conclusion will, as well, resolve the final question raised by the insurer, namely, whether the trial court erred in reserving, to a post-appeal hearing and determination, any allowance for an additional attorney’s fee for services rendered to the beneficiary upon insurer’s appeal.

The problem of trial courts in dealing with an award for an attorney’s fee. for services on appeal at the time of the entry in the trial court of the judgment from which an appeal may or may not be taken has clearly troubled the Texas courts, as shown in Cooksey v. Jordan, 104 Tex. 618, 143 S.W. 141 and International Security Life Insurance Co. v. Spray, supra, and the numerous cases cited in the latter. Taxation as costs, for which the statute provides, affords a ready solution to the problem of a post-appeal award of an additional attorney’s fee for services actually rendered on appeal, without affecting the certainty of the final judgment.

Accordingly, the record is remanded with directions to: (a) modify the judgment entered below by adding thereto interest on $100,000 as herein indicated and by subtracting therefrom the $6,000 award for pre-appeal attorney’s fee; (b) tax, as costs, the $6,000 award for preappeal attorney’s fee; (c) determine, after hearing, and tax as costs any additional attorney’s fee to be awarded for appellate attorney’s services, conformably t° Article 3.62 of the Texas Insuranee Code.

      . “Section II
      Part B
      Definition Of Injury And Scope Of Coverage Hazard H-12
      24-Hour Accident Protection While On A Trip — Business Only. (Inside or Outside City Limits)
      Description Of Hazards Such insurance as is afforded to an Injured Person to which this Hazard H-12 applies, shall apply only to injury, . sustained by such person anywhere in the world while on the business of the Policyholder and during the course of any bonafide trip made by the Insured Person.
      Such trip shall be deemed to have commenced when the Insured Person leaves his residence or place of regular employment for the purpose of going on such a trip, whichever last occurs, and shall continue until such time as he returns to his residence or place of regular employment whichever first occurs.
      Definitions
      The term ‘while on the business of the Policyholder’ as used in this Hazard means while on assignment by or at the direction of the Policyholder for the purpose of furthering the business of the Policyholder, provided that injury sustained during the course of every day travel to and from work . . . shall not be deemed to be sustained while on the business of the Policyholder.”

      . Finding of Fact No. 20.
      “E. C. Duffer, III, had the authority as controller for the Policyholder to make decisions regarding his trips, assignments and actions for the purpose of furthering the business of the Policyholder and thus at the time of his death was on assignment by or at the direction of the Policyholder furthering the business of the Policyholder.”

      . Finding of Fact No. 17.
      “At the time of the automobile accident which resulted in the death of E. C. Duffer, III, he was then engaged in the performance of a function for the purpose of furthering the business of Temtex Leisure Vehicles, Inc., the policyholder.”

      . Finding of Fact No. 18.
      “At the time of the automobile accident which resulted in the death of E. C. Duffer, III, the date was November 27, 1972, and the time was approximately 6:00 P.M., and at that time:
      a. He was on a trip from his residence for the purpose of furthering his employer’s business;
      b. He was not in the course of ‘everyday travel to and from work’;
      d. He had already performed his usual and ordinary tasks of work for that day with such employer.”
      Finding of Fact No. 19.
      “Those injuries received by E. C. Duffer, III, in the automobile accident and which said injuries resulted in his death were not sustained during the course of everyday travel to and from work.”

      . Finding of Fact No. 15.
      “At the time of the automobile accident which resulted in the death of E. C. Duffer, III, he was then ‘on business of the policy holder’, as that term is defined in the insurance policy in question.”

      . Finding of Fact No. 16.
      “The automobile accident which resulted in the death of E. C. Duffer, III, occurred during the course of a ‘bona fide trip.’ ”

      . Article 3.62 of the Texas Insurance Code, V.A.T.S., provides as follows:
      “In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company, liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorneys’ fees for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case. The court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.”

      . Finding of Fact No. 24.
      “That in the event of an appeal, a reasonable attorneys’ fee for Plaintiff in addition to the sum of $6,000 herein found would be set by the Court upon presentation to the Court of evidence as to the proper amount of such fees under the particular circumstances of this case, as such fee is allowed under Article 3.62 of the Texas Insurance Code.”


author: JOHN R. BROWN, Chief Judge:

text:
    Warren DILLON and Jean Dillon, Individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. BAY CITY CONSTRUCTION COMPANY, INC., et al., Defendants, and AFBIC Development Corp., Riley Smith, Inc., and Riley B. Smith, Defendants-Appellees.
    No. 73-3942.
    United States Court of Appeals, Fifth Circuit.
    May 12, 1975.
    J. U. Blacksher, Mobile, Ala., Jack Greenberg, Sylvia Drew, New York City, for plaintiffs-appellants.
    Chase R. Laurendine, Mobile, Ala., for defendants-appellees.
    Richard W. Vollmer, Jr., Mobile, Ala., for other interested parties.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

This is a Fair Housing case brought both as a class action to enjoin a pattern of racial discrimination in the sale of houses in a Mobile, Alabama subdivision and to compel the defendants to sell a specific house to the named plaintiffs. Two weeks after the suit was filed, the District Judge consolidated the case on the merits with the hearing on the preliminary injunction. At the hearing, he directed that Bay City Development Corporation, the owner of the house, convey it to the plaintiffs but then held that since no discrimination had been shown by the remaining defendants, they should be dismissed from the case. Since we find that the case as consolidated by the District Court did not give the parties sufficient opportunity for discovery in order to see if they could sustain their complaint, we reverse.

The events that produced this suit were short-lived. It was only 10 days from the time when Jean Dillon first made a contract of sale to purchase the house for $42,500 for her and her husband until the time that the realtor returned her earnest money check with the explanation that the owner had decided to sell it to his daughter. The house she wanted was located in the previously all-white subdivision of Mobile known as Lansdowne. The seemingly dilatory actions of the defendants that she encountered appeared to her to be designed to inhibit her purchase of the house. Consequently, she and her husband filed suit to protect their right to purchase that house and the right of other black persons not to be similarly excluded from the area.

Briefly, these were the specific events: Jean Dillon on May 14, 1973 went to the office of Riley Smith Incorporated, the real estate agent that marketed the Lansdowne homes for the AFBIC Development Corporation, the developer of the addition and title owner of the lot at issue. Mr. Guillot, the agent for Riley Smith Inc., drew up a contract of sale that was signed there in the office. Mrs. Dillon returned home and immediately contacted a savings and loan in order to process a loan application. They told her .then that the seller’s signature had been omitted from the contract. Mrs. Dillon then called Guillot who told her that the omission was his error and that he would bring a corrected typewritten contract by the school where she taught the next day, Tuesday, May 15, 1973.

It was not, however, until Wednesday morning that Mrs. Dillon was able to reach Guillot. He attributed the missed appointment to a flat tire, denied he was giving her the “run around” and said that the contract was not yet typed. That afternoon when she came to the real estate office for the contract Guillot filled it out then in longhand. He represented to her then that his signature as authorized agent was sufficient to complete the sale of the house. However, at the request of Jean Dillon, the contract was written so as to be subject to her husband Warren Dillon’s approval upon his return from Chicago. That day Mrs. Dillon had her savings and loan begin to process the note based on the executed contract of sale.

On Thursday, May 17, the vice-president of the savings and loan noticed that the exact address had been omitted from the contract of sale. He then called the office of the seller, noted on the contract as Bay City Construction Company, where he was referred to Riley Smith. When the loan officer reached him, Smith himself represented that he was the owner of the house but would not accept the contract of sale so long as it was subject to Warren Dillon’s subsequent approval.

That same Thursday, Guillot found Mrs. Dillon looking over the new house that she thought at this point was soon to be hers and gave her a letter from Smith stating that her check was being returned to her because Mr. Greene, the owner of Bay City Construction Company, would not accept the contract “under the conditions specified therein.” In the letter Smith offered to discuss the sale of the house again with the Dillons when Warren Dillon returned “should it be available.”

Jean Dillon immediately informed Guillot that her husband had agreed to the sale by phone and asked him to draft then and there an unconditional contract — this time with the signature of Mr. Greene in order to avoid any further problems. Guillot agreed and even commented further that the Birmingham branch of Riley Smith Inc. had been called to see “how the other black people in the neighborhood were getting along with the whites.”

Despite the unconditional contract for the seller’s asking price, the sale was not expedited. For days thereafter Mrs. Dillon herself called the Riley Smith office to check its progress. Each time Guillot told her that he had been unable to contact Greene. Finally on Monday the 21st of May Riley Smith personally called Mrs. Dillon and informed her that the house was being sold to Mr. Greene’s daughter and that she should come by and get her check. She refused and her check was mailed to her.

The Dillons filed their complaint three days later on May 24, 1973. They asked for a temporary restraining order and a preliminary injunction to prevent the sale of the house. They sought damages personally for the Dillons and injunctive or declaratory relief for the class of similar black citizens barred by the defendants from living in the area. When the counsel for the defendants advised the Dillons that no attempt would be made to sell the house until after the hearing on the preliminary injunction, no hearing was sought on the temporary restraining order.

On May 30, 1973 the parties were notified that the District Judge planned to hear both the final merits and the preliminary injunction six days later on June 5, 1973. On the day of the hearing at a prehearing conference, counsel fot the Dillons objected to the consolidation stating that he was unprepared on the final merits. During the same conference, the counsel for Bay City explained that although AFBIC was the title holder of the house, Bay City and Brewton Greene held an option to purchase it. Counsel for Bay City stated that his client was then prepared to convey the house to the Dillons.

At the hearing itself, the trial Judge, after noting the stipulation by the parties to the sale, stated that they would turn to the question of the preliminary injunction and the damage issues. Both sides then protested that they were unwilling to put on evidence of damages on such short notice', but the Judge stated that he was not concerned about the class issue. That issue he said, was a question that he had doubts about but it was the proper subject for a brief. At that point the Judge seemed to backtrack and call for evidence in support of the motion for a preliminary injunction. The counsel for defendants stated that they had testimony that would be offered on this issue. The counsel for the Dillons appears to have understood only that he was offering evidence at that point only on the issue of the motion for preliminary injunction. Under those circumstances the appellants put on two witnesses' — Jean Dillon and her friend, Bernice Moseley, who both testified to the problems the Dillons had encountered in purchasing the house.

After this testimony, the Dillons rested their case, thinking, according to their counsel, that evidence had been put on solely for the motion for preliminary injunction. At that point in the proceedings, the District Judge apparently determined that it was unnecessary to call the defendants’ witnesses because he began to announce his proposed findings from the bench. He stated that there was no evidence that a class had been precluded from purchasing homes in the subdivision but that any possible claims should be considered by the HUD administrative procedure under 42 U.S.C.A. § 3610. As to the other defendants — Riley Smith Inc., Riley Smith individually, and AFBIC — the District Judge found no evidence of discrimination and therefore dismissed the case as to them.

Appellants challenge the decision of the District Judge on four grounds: (i) the advancement of a case on the merits under such expeditious circumstances was an abuse of discretion; (ii) the District Judge lacked the statutory power to dismiss the action against the remaining defendants at the end of the plaintiffs’ case-in-chief; (iii) the findings of fact of the Court as to the absence of discrimination were clearly erroneous; (iv) even if the Dillons’ individual action was properly dismissed, the class action should not have been. Since we hold that both the class and the individual actions were improperly accelerated, we do not reach the other points.

Under F.R.Civ.P. 65 the District Judge has broad discretion to advance the merits in order to consolidate them with the hearing on the motion for a preliminary injunction. The rule permits the Trial Judge to flexibly merge and hear the component parts of a case thereby avoiding repetition and unnecessary delay. Nevertheless, the Trial Judge must not force the parties by the consolidation to sacrifice their right to fully present the available evidence. 7 Moore’s Federal Practice ¶ 65.04[4]; Nationwide Amusements v. Nattin, 5 Cir., 1971, 452 F.2d 651; Puerto Rican Farm Workers v. Eatmon, 5 Cir., 1970, 427 F.2d

210. Although here, unlike Eatmon, the Judge did give prior notice of the consolidation, the cases are similar in that in both instances counsel was convinced that they were offering their witnesses solely on the issue of the preliminary injunction. This confusion re-suited in an inadequate hearing because counsel for the Dillons failed to put on even the evidence then available on the merits.

But we do not put our action on whether this was a justifiable but mistaken impression of counsel faced with quick decisions. Advancement at that time, inhibited altogether the extensive discovery and investigation necessitated by this kind of class action and to which plaintiffs had a right under F.R.Civ.P. 26. It is inherently difficult to prove a pattern of discrimination directed at such a diverse minority group as would-be home purchasers whose common ground would be the threshold of the real estate agent’s office. This Court has heretofore recognized the right of an individual class action plaintiff in support of his own claim to discover empirical data in order to reconstruct an employer’s overall past employment practices with regards to the class of which plaintiff was a member. Burns v. Thiokol Chemical Corporation, 5 Cir., 1973, 483 F.2d 300. It was highly prejudicial to the plaintiffs to compel them to pull together their entire case either as a class or individually on such short notice. Additionally, the plaintiffs were entitled to discovery which would bear on the always troublesome questions of whether this was or ought to be considered a class action, see F.R.Civ.P. 23 and the terms and conditions, if any, on which it could proceed.

We therefore vacate the judgment and remand for further consistent proceedings.

Vacated and remanded.

      . The suit was brought under both the Fair Housing Act of 1968, 42 U.S.C.A. § 3601 et seq. and 42 U.S.C.A. §§ 1981, 1982.

      . Appellants received their notice the following day, May 31, 1973, giving them just five days to put together their case on the merits. In addition, service was not completed on all defendants until the very morning of the hearing, June 5, 1973.

      . Subsequently, the Dillons and Bay City settled their remaining disputes and the District Court granted their joint motion to dismiss. This made final its prior dismissal of AFBIC and Riley Smith, Inc.

      . Counsel for the Dillons stated on oral argument that had he realized at the time that he was in fact putting on his entire case, he would at least have called the defendants.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Isham Eddie PERRY, Defendant-Appellant.
    No. 74-2088.
    United States Court of Appeals, Sixth Circuit.
    March 19, 1975.
    Herbert Allen Thornbury, Chattanooga, Tenn. (Court-appointed), for defendant-appellant.
    John L. Bowers, U. S. Atty., Ray H. Ledford, Chattanooga, Tenn., for plaintiff-appellee.
    Before PECK and McCREE, Circuit Judges, and MILES, District Judge.

       The Honorable Wendell A. Miles, United States District Judge for the Western District of Michigan, sitting by designation.

   PER CURIAM.

This is a direct appeal from a jury conviction of unlawful possession and forgery of United States Treasury checks in violation of 18 U.S.C. §§ 495, 1708. Appellant presents three contentions of error.

Before the jury was selected, the district judge, in his orientation of the prospective jurors, said, “Mr. Perry is charged in a four-count indictment with having violated the laws of the United States relating to the possession and forgery of treasury checks.” However, the U. S. Attorney was not prepared to proceed on two of the four counts, and since he had not so advised the judge before trial, he requested a bench conference and told the judge that the government would proceed on two counts only. The judge then explained to the jury that the trial would involve the “first and second counts only.” The record shows that approximately a week before the trial was to begin, the U. S. Attorney’s office had decided to proceed on only counts one and two of the indictment because of the unavailability of a key witness. At the close of the government’s case, appellant moved to dismiss the charges because the jury had learned through the United States Attorney’s neglect and because of oblique references by prosecution witnesses that another check was involved in the third and fourth counts. The district judge denied the motion but directed a verdict of acquittal on the third and fourth counts.

Appellant contends the court should have dismissed all the charges. If the trial had been free from error in other respects, we might have regarded the disclosure to the jury of counts three and four as harmless.

However, appellant contends that other prejudicial errors occurred at trial. He took the stand to testify in his own behalf and, on cross-examination, was asked by the government attorney whether he was a “member of what is called the Dixie Mafia out in East Ridge.” The district judge sustained an objection to this question.

Also, on cross-examination, appellant was asked whether he had illegally signed any other checks. After eliciting the expected negative answer, the U. S. Attorney recalled to the stand a Secret Service Agent who testified that the defendant had endorsed another U. S. Treasury check using another person’s name. The government contends that it properly introduced the agent’s testimony for the purpose of impeaching appellant’s credibility.

We have stated in other cases our concern about the practice of prosecutors deliberately injecting inadmissible prejudicial evidence into criminal trials and thereby jeopardizing otherwise strong cases. See, e. g., United States v. O’Donnell, 510 F.2d 1190 (1975) (concurring opinion); United States v. Smith, 500 F.2d 293 (6th Cir. 1974); United States v. Calvert, 498 F.2d 409 (6th Cir. 1974); United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970).

In this case, the prosecutor committed several improprieties that either were not corrected or were not susceptible of correction by the district judge, and combined to affect adversely appellant’s substantial rights. Rule 52(a) Federal Rules of Criminal Procedure.

The major error was the prosecutor’s questioning of the defendant about other instances of unauthorized check endorsements and his efforts to prove such misconduct by rebuttal testimony. Mr. Justice Jackson, writing for the Court in Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948), observed that: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.” The prosecution may not show in its case-in-chief defendant’s “prior trouble with the law, specific criminal acts, or ill name among his neighbors.” Accordingly, if a defendant does not take the stand, the prosecutor may not establish that the defendant committed other misdeeds (whether amounting to a conviction or not). The reason for this limitation is that such collateral evidence would “weigh too much with the jury and ... so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” 1 Wigmore, Evidence (3d ed., 1940) § 57.

However, if the defendant takes the stand to testify on his own behalf, he may be cross-examined about prior convictions for the limited purpose of impeaching his testimony. But, with the exception noted below, the defendant may be impeached by prior convictions only. Thus, in United States v. Yarbrough, 352 F.2d 491 (6th Cir. 1965), we vacated a kidnapping conviction because the prosecutor asked whether defendant had been indicted for an attempt to ravish. Judge Weick, speaking for the court, said “it is well established in federal courts that it is reversible error to permit inquiry into defendant’s prior indictments which did not result in convictions. . . . Only a conviction for a felony may be asked about to impeach a defendant’s credibility.” 352 F.2d at 493, citing United States v. Pennix, 313 F.2d 524 (4th Cir. 1963).

An exception to the rule that a defendant may be impeached only by prior convictions exists if the defendant attempts affirmatively to prove his good character. In some cases, the defendant may want to introduce testimony that “the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged.” Michelson, supra, at 476 of 335 U.S., at 219 of 69 S.Ct. If the defendant attempts to prove his good name, the prosecution may rebut this effort with contradictory witnesses. Cf. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).

In this case prejudicial error was injected into the trial in two respects. First, the prosecutor sought to impeach the appellant’s credibility by asking him whether he had signed other checks without authorization. This was improper because it was not an inquiry about forgery convictions and appellant had not attempted to establish his good character. Second, the prosecutor used a rebuttal witness to prove appellant’s misconduct on another occasion, although appellant had not put into issue his good character, and the prosecutor could not introduce the issue by his question.

The district judge acted properly in sustaining the objection to the prosecutor’s question about the Dixie Mafia. However, the U. S. Attorney should have been well aware of the legal irrelevance and prejudicial effect of this question. The Code of Professional Responsibility of the American Bar Association states the matter in this way; “In appearing in his professional capacity before a tribunal, a lawyer shall not; . . . (2) Ask any question that he has no reasonable basis to believe is relevant to the ease and that is intended to degrade a witness or other person. . . . ” American Bar Association, Code of Professional Responsibility, Disciplinary Rule 7— 106(C)(2), p. 88 (1969).

In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court stated that the U. S. Attorney’s duty to the public and the defendant obliges him to seek justice rather than convictions. The prosecutor in this case appears to have been preoccupied with seeking the latter rather than the former. His conduct requires reversal of what otherwise would likely have been an untainted conviction.

Reversed and remanded for a new trial.

      . The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
      295 U.S. at 88, 55 S.Ct. 629, 79 L.Ed. 1314.


author: PER CURIAM:

text:
    Petition of YIU NAM DONN. Appeal of UNITED STATES of America.
    No. 74-1206.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 19, 1974.
    Decided Feb. 25, 1975.
    John L. Murphy, DeWitt R. Dent, Washington, D. C., Robert P. Trout, Dept, of Justice, Crim. Div., Washington, D. C., for appellant.
    Casimir F. Sojka, New York City, Edward L. Dubroff, Brooklyn, N. Y., for appellee.
    Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

§ 329 of the Immigration and Nationality Act, 8 U.S.C. § 1440(a), allows citizenship to aliens who have served actively in the armed forces during specified periods of wartime or hostilities. Active duty service during both the Korean and Vietnamese conflicts is included. In this case, we hold that an alien, who served actively in Korea after the Korean cease-fire, and who was on inactive duty during the Vietnamese conflict, does not qualify for citizenship under § 329 of the Act. The contrary holding of the district court is reversed.

Yiu Nam Donn, a native of Mainland China, entered the United States in 1952, as the alleged son of a United States citizen. On the basis of his father’s alleged citizenship, Donn was issued a certificate of citizenship in 1955 under § 341 of the Act, 8 U.S.C. § 1452.

Appellee Donn served actively in the military forces from 1958 to 1960 and was assigned to Korea for one year of that period. Subsequent to his active duty assignment, he was a member of the standby reserve from 1960 to 1964.

Mr. Donn subsequently learned that his father had not in fact been an American citizen. Upon learning this information from Mr. Donn, the Immigration and Naturalization Service cancelled Donn’s certificate of citizenship. Donn then filed this petition for naturalization under § 329 of the Act based on his military service.

Although there are cases construing servicemen’s citizenship petitions in a liberal fashion, no cases have gone so far as petitioner would have us go. § 329 of the Act specifically states:

Any person who, while an alien has served honorably in an act/ve-duty status in the military . forces of the United States during ... a period beginning June 25, 1950, and ending July 1, 1955, or during the period beginning February 28, 1961, and ending on a date designated by . . Executive order . . . may be naturalized . . (Emphasis added).

.The district court held, and petitioner Donn argues, that this petition comes within the spirit of the Act for two reasons. The period of the Korean war is covered by § 329. Although Mr. Donn did not serve during that period, he served in Korea, where tensions continued even after the 1955 termination of active fighting. Secondly, Mr. Donn argues that during the Vietnam period he was in standby service, ready to be called up at any time.

This argument must fail because it asks us to rewrite a statute which requires active duty service during a specified period rather than service in any specific place or service in the standby reserves.

We simply cannot agree that the cases construing § 329 liberally are helpful to Mr. Donn. In United States v. Convento, 119 U.S.App.D.C. 35, 336 F.2d 954 (1964) the court affirmed a judgment granting naturalization under § 329 of the Act. The petitioner in that case had enlisted in 1953 while in the Philippines. Although he had enlisted during the Korean war, his first enlistment had not occurred within the United States as required by § 329. The court granted naturalization because Convento had reenlisted in the Navy while in the United States, although after the Korean war had ended. Judge Bazelon’s concurring opinion, relied on by the district court in this case, states:

Easing naturalization requirements for those who have served our country in wartime is a congressional policy of long standing. It is not simply a matter of reward, it is also a recognition that no further demonstration of attachment to this country is necessary. Since appellee’s case is within the congressional aim, the statute should not be read restrictively to bar him unless it is expressly commanded.
In the absence of the clearest indication that Congress intended to confer well-merited benefits in arbitrary and niggardly fashion, we must assume that it did not. 336 F.2d at 954-55.

The instant case is distinguishable from Convento where the petitioner complied with all the requirements of the statute but merely performed the requirements (enlistment within the United States, and active duty service during the Korean war) in successive enlistments rather than in one. In this case, Mr. Donn has not met the requirements of § 329. His active duty service simply did not occur during a period specified by Congress. It is not within our power to rewrite the statute to encompass Mr. Donn’s petition.

The Supreme Court has decided only two cases dealing with servicemen’s petitions. In Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) the Supreme Court held that a cut-off date for naturalization petitions must be strictly construed against the alien despite the fact that the Court of Appeals had weighed the equities in favor of petitioner.

In Tak Shan Fong v. United States, 359 U.S. 102, 79 S.Ct. 637, 3 L.Ed.2d 662 (1959) the Supreme Court held that § 329 did not apply where an alien had unlawfully entered the United States prior to his honorable military service during the Korean war. Mr. Justice Brennan stated for the Court:

Of course, we must be receptive to the purpose implicit in legislation of this sort, to express gratitude of a country toward aliens who render service in its armed forces in its defense. But that does not warrant our rationalizing to an ambiguity where fairly considered none exists, or extending the generosity of the legislation past the limits to which Congress was willing to go. 359 U.S. at 107, 79 S.Ct. at 641 (emphasis added).

It is clear that the instant petition does not fall within the language of § 329 which requires active duty during a specified period. In light of the prohibition, reiterated in Tak Shan Fong, against extending the limits of a statute beyond a point which Congress was willing to go, we cannot affirm the granting of a petition which does not come within the scope of § 329.

For the foregoing reasons, the district court order granting naturalization will be reversed.

      . Petition of Donn, 369 F.Supp. 669 (D.N.J., 1973).

      . Mr. Donn is married to a permanent resident alien and is the father of two children who are citizens by reason of their birth in this country.
      At oral argument, the government indicated that if Mr. Donn’s § 329 petition were denied, he would have had to return to Hong Kong to apply there for permanent resident status. At the court’s request, the government reexammed Mr. Donn’s status. In view of the exceptional nature of this case, Mr. Donn was not required to return to Hong Kong. The court has been furnished with proof that Donn has recently been granted permanent resident status. He will be eligible to apply for citizenship in five years on the basis of his permanent resident status, or in three years if his wife should become a naturalized citizen in the interim.

      . The complete text of § 329, 8 U.S.C. § 1440(a) provides:
      Any person who, while an alien or a noncitizen national of the United States, has served honorably in an active-duty status in the military, air, or naval forces of the United States during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or during a period beginning June 25, 1950, and ending July 1, 1955, or during a period beginning February 28, 1961, and ending on a date designated by the President by Executive order as of the date of termination of the Vietnam hostilities, or thereafter during any other period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who,, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if (1) at the time of enlistment or induction such person shall have been in the United States, the Canal Zone, American Samoa, or Swains Island, whether or not he has been lawfully admitted to the United States for permanent residence, or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence. The executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions: Provided, however, That no person who is or has been separated from such service on account of alienage, or who was a conscientious objector who performed no military, air, or naval duty whatever or refused to wear the uniform, shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section. No period of service in the Armed Forces shall be made the basis of a petition for naturalization under this section if the applicant has previously been naturalized on the basis of the same period of service.

      . In 10 U.S.C. § 101(22), Active duty is defined as:
      “Active duty” means a full-time duty in the active military service of the United States. It includes duty on the active list, full-time training duty, annual training duty, and attendance, while in the active military service, at- a school designated as a service school by law or by the Secretary of the military department concerned.
      Standby reserve in contrast is defined by 10 U.S.C. § 273(a) as:
      The Standby Reserve consists of those units or members, or both, of the reserve components, other than those in the Ready Reserve or Retired Reserve, who are liable for active duty only as provided in sections 672 and 674 of this title.
      Although Standby reserve members are eligible for active duty, they are clearly not on active duty.

      . The other cases relied on by petitioner are not helpful. In Villarin v. United States, 307 F.2d 774 (9th Cir., 1962) petitioner complied with all the requirements of § 329 with sequential enlistments. See also In Re Gabriel, 319 F.Supp. 1312 (D.P.R., 1970). United States v. Rosner, 249 F.2d 49 (1st Cir., 1957) construed § 328, not § 329. Although it read § 328 in an extremely liberal manner, this case predated some more restrictive Supreme Court cases infra. The precedential value of Rosner, therefore, is limited. In Re Sing’s Petition, 163 F.Supp. 922 (N.D.Cal., 1958) dealt with a different aspect of the statute and is not relevant here.
      Although In Re Todorov, 253 F.Supp. 977 (N.D.Ill., 1966) does discount the active duty requirement, we are simply not inclined to follow that case.