Armstrong v. Alvarado

2 P.R. Fed. 33

Opinion

McKeNNA., Judge,

delivered tbe following opinion:

After careful consideration of the oral arguments and briefs, submitted herein, the court desires to call attention to an irregularity of practice and violation of the plain and express provisions of equity rule No. 39, in the answer of defendant, in seeking to set up a plea in abatement as to the competency of complainants to maintain this suit. Not having availed himself of the right to plead or demur, as required by this rule, defendant had no right .to include in his answer the matter of abatement as a defense; and it must therefore be concluded that by said default he has waived the same.

The master’s report, however, although not based on this waiver and consequent admission of the competency of com' plainants to sue, is supported on the authority of-the express provision of the section of the Code of Porto Pico making it wholly optional in special ventures, or partnerships on private, agreements between merchants, .to register the same, as .in ,the case of corporations and other associations. This finding is assigned for error by the defendant, and the court overrules the same, and affirms the master’s finding as correct oh this question.

'■ At the'argument, the only other éxception assigned'for error, insisted upon, involved the question of the power of the liquidating partner to dispose of an asset of the late firm of Boysén & Company, where said firm owned a fractional or '40 per -cent interest^ without notice and assent of the co-owner. • The testimony before the master disclosed the authority of the late firm of Boysen & Company'to sell and dispose of the special assets of said firm. The liquidation did not rescind this right, but devolved the execution of the same as part of the duties of the liquidation.. This .construction is fully borne, out by. .the action and conduct of defendant Alvarado, who, on receiving notice, did not object, but, on the contrary, fully acquiesceá therein. In no sense can this.be said' to ,be the making .of a new contract in excess of the power or duties of a liquidator. It is in fact but the carrying out of an old or existing contract devolving upon him by law as the liquidator.' The'court consequently fails to note any error in this conclusion of law of the master, and therefore'confirms it.

The other exceptions', riot being insisted Upon at the : arguL ment, are overruled. -Let' a fórm of decree iri accordance with the master’s report be subinitted. '■ : *