Volume 31 — Puerto Rico Reports

<p>Appeal from a Decision of the Registrar of Property Refusing to Record, a Mortgage.'</p> <p>The facts are stated in the opinion.</p>

<p>Filiation — Acknowledgment — Evidence. — The mere statement made at the trial by the mother and the -únele of the plaintiff that the alleged father sent her two or three dollars a month for the child’s support, without anything in the record to show that the defendant had publicly treated the plaintiff as his child, is not strong and convincing evidence that the father acknowledged the plaintiff to be his natural child.</p>

<p>Appeal from the District Court of Mayagüez in an Action to Recover on an Insurance Policy.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Appeal — Statement op Case — Extension op Time. — A motion for dismissal of an appeal on the ground that the extensions of time granted the appellant by the court below for filing the statement of the ease were null and void, can not be said to be premature because th© appellees did not raise that question in the court below. ■ ■</p> <p>Id. — Id.—Id.'—Indefinite Extension. — In this ease the appeal was taken on August; 5, 1922. On August 11, 1922, the court granted the appellant an extension qf time for filing the statement of the case to be computed from the day on which the stenographer delivered to him the transcript of the notes asked for. On August 23, 1922, the court allowed the stenographer thirty days within which to deliver the transcript to the appellant and thereafter granted the appellant other extensions for filing the statement of the case. Held: That as the first extension was void because it was indefinite, the second one was void also because when it was granted the 10 days allowed the appellant for filing the statement of the case had expired; therefore, the transcript not having been filed in the Supreme Court within the time allowed by law, the appeal should be dismissed.</p>

<p>Appeal from the District Court of San Juan in Injunction Proceedings. — Memorandum of Costs.</p> <p>The facts are stated in the opinion.</p>

<p>Payment by Mistake — Surety—Discussion—Notice—Waiver.—A. surety who on demand pays the amount oí a judgment against his principal can not maintain' an action thereafter against the judgment creditor for the recovery of money paid by mistake on the plea that he was not notified of the judgment or that discussion was not attempted of the property of the principal, for sueh payment is a waiver of discussion and of notice of the judgment, even supposing that sueh notice was necessary. Volenti non fit mjivria.</p> <p>Id. — Pleading—Admission ioe Pacts — Demurrer.—Admission by a defendant of the facts alleged in an insufficient complaint does not cure the defects of that complaint, especially when the admission is made after a demurrer has been filed. ,</p>

<p>CTnlaweul Detainee — Lease—Title.—-The plaintiff purchased a certain property from the Bank of San Juan. The defendant had leased the same property from the said bank. The plaintiff, who. was not bound to respect the contract between the bank and the defendant, brought this action of un« lawful detainer. The defendant alleged that there was pending an action brought by another person against the bank wherein the latter’s title to the property was at issue. Held: That the existence of the other action had nothing to do with the prosecution of the action of unlawful detainer.</p> <p>Id. — Id.—Sale oe Leased Peoperty.- — When the purchaser of a property subject to a lease which is not recorded in the registry does not agree to respect the contract, although he may have knowledge of its existence, he is not bound by its terms, and if the lessee refuses to deliver the property to him he may bring an action of unlawful detainer in the proper district court, for, there being no contract, the possession of the property by the lesseé amounts to a tenancy at suiferanee and no question arises concerning the ■ amount of the annual rent, as held in Sosa v. Mo Grande Agrícola Cor, Ltd., 17 P. E. E. 1106.</p>

<p>Bill op Exchange — Acceptance—Protest—Corporation—Pleading.—The complaint in this case was based upon a bill of exchange accepted by a certain person in the name of the defendant, a corporation, without alleging' that that person was an officer or duly authorized agent of the eoiporation. A de- . murref was overruled. Meld: That the court below erred, for no person, natural or artificial, can be bound by the acts of 'another, unless the authority to act has been given in one of the many ways recognized by the law, and as the complaint contained no allegation to that effect, the demurrer should have been sustained. Quaere: Whether the protest of a bill of exchange is necessary in order to bind a person who has accepted it. (</p>

<p>Dilution — Inheritance—Compromise—Costs—Attorney Dees. — The cause of action for recovery of inheritance having been compromised by leave of the court in an action wherein the first cause of action of the minor plaintiff was for his acknowledgment as a natural child, and the defendant having proved in the matter of the memorandum of costs that by the payment of the $5,000 in the compromise he was relieved of all liability within, the action, it is necessary to conclude that he was likewise relieved from the payment of the attorney fees claimed by the plaintiff in his memorandum under a judgment sustaining the complaint as to the acknowledgment and imposing the costs upon the defendant.</p>

<p>Appeal from the District Court of Ponce in Injunction Proceedings.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property Refusing to Record Partial Cancelation of Submortgage.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Purchase and Sale — Lump Sum • — ■ Unit op Measuriíment — Construction. — The principal question in this case is ■whether the sale of 150 acres of sugar cane made by the plaintiff to the defendant and shown to be only 127 acres by the survey made by an expert appointed by the court, was made for a lump sum or for a unit of measurement. There is in the record a letter' from the plaintiff to the defendant stating that in accordance with the wish of the latter the former had surveyed the cane fields involved in the suit and the survey showed an excess of 1.76 acres which the plaintiff hoped would be paid for as soon as possible. Held-: That the interpretation given by the plaintiff himself to the contract entered -into by him dispelled any doubt which might, otherwise exist as to the real intention of the parties expressed in a vague and ambiguous manner in the notarial document and was sufficient to sustain the theory of the defendant that the sale was made for a certain sum for a unit of measurement.</p>

<p>Appeal from the District Court of Ponce in Certiorari Proceedings. — Motion for Dismissal of Appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Guayama in Certiorari Proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>PetitioN for a Writ of Certiorari to the District Court of Arecibo, Hon. Enrique Lloreda, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Mercantile Contract — Shipment — Construction. — Construing a mercantile contract for the purchase and sale of rice in which, with regard to the time and manner of shipment, the following was stipulated:</p> <p>“When-ship during April.</p> <p>“How ship — by steamship.”</p> <p>Meld,: That although the mill was not situated on the coast, the word ‘ ‘ ship ’ ’ does not mean that the transportation may be by railroad, and that the words “by steamship” is not a mere prohibition to ship by sailing ship.</p> <p>Id. — -Id.—Performance.—If a party charge himself with an obligation possible to be performed, he must abide by it unless performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties will not excuse performance. Where the parties have made no provision for a dispensation, the terms of the contract must prevail. One who mates a contract never can be absolutely certain that he will be able to perform it whe4 the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking.</p> <p>Id. — Id.—Id.—As a general rule when a party expressly undertakes to perforin some act his engagement easts upon him a duty the discharge of whieh cannot be excused by showing his inability by reason of the interference of third persons.</p> <p>Id.' — -Id.'—Id.—The abbreviation “c. i. f. ” is sometimes used in mercantile transactions, especially in England, for cost, freight and insurance. A seller under contract of sale containing such terms has first to ship at the port of shipment goods of the description contained in the contract; second, to procure a contract of affreightment, under which the goods will be delivered at the destination contemplated by the contract; third, to arrange for an insurance upon the terms current in the trade whieh will be available for the benefit of the buyer; fourth, to make out an invoice; and finally to tender these documents to the buyer so that he may know what freight he has to pay and obtain delivery of the goods if they arrive, or recover for their loss if they are lost on the voyage. Such terms constitute an agreement that the goods, provided they are in conformity with the contract, shall he delivered on hoard ship at the port of shipment,</p> <p>Id. — Id.—Id.—In a mercantile contract, a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, or condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract.</p>

<p>Appeal — Notice oh Appeal — Adverse Party. — The adverse party to whom notice of an appeal should be given is one who would be unfavorably affected by a reversal and it was held in this ease that two defendants who with the appellant are successors in interest by reason of an obligation contracted by their ancestor are not adverse parties.</p> <p>Id. — Id.—-Discretion oh Oourt. — If in answer to a motion for dismissal of the appeal for failures to give notice to adverse parties the appellant shows by a certificate that notice was given to them although it does not appear in the reeord, the Supreme Oourt should exercise its discretion to admit the certificate and refuse to dismiss.</p>

<p>Appeal from the District Court of Humacao in a Prosecution for Violation of Section 333 of the Penal Code.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Transcript oj? Record — Motion to Dismiss — Discretion oe Court.— In an appeal the only jurisdictional period is the time allowed for taking the appeal. After the appeal has been taken all the other periods are subject to the discretion of the court and it may extend or, in extreme cases, even substitute them by new periods. But the discretion of the court is not arbitrary, and the appellant in this case not having shown that a good cause prevented him from filing the transcript in time or asking for an extension, the appeal should be dismissed, inasmuch as the transcript was filed after the appellant had notice of the motion for dismissal.</p>

<p>Appeal from the District Court of Ponce in Certiorari Proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>Evidence — Expert.—An internal revenue agent after qualifying as an expert, may testify as such as to whether or not a certain apparatus exhibited in court in pieces is a still, and when that evidence is not contradicted the court is justified in accepting the conclusions of the expert, especially when his testimony is strengthened by other evidence.</p>

<p>Hire — Services—Pleading—Fixed Price.. — A counter-complaint in which it is alleged that the plaintiff agreed to pay to the counter-plaintiff for his services a certain percentage which the parties would fix later according to local usage and custom states facts sufficient to constitute the cause of action arising from section 1447 of the Civil Code. The fact that an indefinite price was alleged does not warrant the conclusion that a specified price was not alleged.</p> <p>Id. — Id.—Reasonable Value. — It having been proved in this case that the agent rendered valuable services to his principal upon the latter’s offer to pay him a certain percentage which would be fixed in the future, it is necessary to conclude that five per cent of the profits is a reasonable rate and is in accordance with the usage and custom of the country.</p>

<p>Appeal from the District Court of Guayama in Certiorari Proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>vVppeal from the District Court of Guayama in an Action of Debt. — Motion for Dismissal.</p> <p>The facts are stated in the opinion.</p>

<p>Injunction — Recovery on Possession — Pleading—Complaint.—A complaint in an injunction proceeding to recover possession is sufficient if from its allegations it may he deduced that the defendant violently and against the will of the owner and plaintiff entered the portion of the property in controversy, taking possession of it and fencing it in.</p> <p>Id. — Id.—Id.—Id.—A complaint in an injunction proceeding to recover possession based on the theory of ouster of possession, is sufficient if it alleges the commission of acts demonstrative of the intention of the defendant to commit the ouster, even admitting failure to allege a permanent and absolute loss of physical possession.</p>

<p>Appeal from the Second District Court of San Juan in an Action of Debt. — Motion for Dismissal.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari — Transcript—Evidence.—When it is desired to review the action of the trial court in refusing to admit a document in evidence, a copy of the document should he inserted in the petition in order that the Supreme Court may judge of its relevancy or materiality.</p> <p>Id. — Id.—Id.—It being doubtful whether certiorari may be invoked for obtaining the inclusion of evidence not admitted, and there being other remedies therefor, the writ should be denied.</p>

<p>Appeal from the District Court of Ponce in a Prosecution for Voluntary Homicide.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from the District Court of Humacao in an Action to Annul a Municipal Ordinance, Etc.</p> <p>The facts are stated in the opinion.</p>

<p>District Court of Saji Juan — Transfer of Case — Appeal—Ekmand—Jurisdiction — Memorandum of Costs. — Tn accordance with section 3 of the Act of March 14, 1907, the judge of one section of the District Court of San Juan could transfer at his discretion to the other section a ease in which judgment had been rendered and appealed from and the transcript was pending approval; therefore, although the judgment on appeal remanded the case to the section of the court whence the appeal had come up, the section to which the ease was transferred had jurisdiction to proceed with the action and consequently to consider the memorandum of costs filed, especially when the court created to succeed the section to which the case was transferred had jurisdiction of the case under the law in force at the time of the remand.</p> <p>Counsel Pees — Appeal—Seduction of Pees. — An appeal was taken from an order allowing $3,000 for counsel fees. The Supreme Court reduced the amount to $1,500 on the ground that although the case was complicated it had been made so to a great extent unnecessarily and that, besides, several of the questions involved were decided against the party to whom the counsel fees were allowed.</p> <p>Costs — Appeal—Discbetion op Court. — The Supreme Court will not interfere with the ruling of the court below in fixing the amount of the items of the memorandum of costs unless a clear abuse of discretion is shown.</p>

<p>Appeal from the First District Court of San Juan in an Action of Debt.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of G-uayama in an Action of Debt.</p> <p>The facts are stated in the opinion.</p>