Brockway Motor Truck Corp. v. Monclova

42 P.R. 849

Opinion

Mr. Justice Wole

delivered the opinion of the Court.

This is a motion to dismiss the appeal as frivolous.

The complaint alleged that the plaintiff was the owner of the promissory notes on which suit was brought, but failed to set out that the promissory notes had been indorsed to the payee by the original payees. Until otherwise advised we shall consider the averment of ownership as the statement of an ultimate fact including, if necessary, an indorsement. It would be surer practice to set out the fact of the indorsement.

The promissory notes were produced at the trial and their indorsement was proved. No demurrer was filed and the defect of the complaint, alleged to be bad, was cured.

The defendants bought a truck, executed a contract of conditional sale, and signed negotiable promissory notes for the price of the truck. In every contract for a conditional sale the vendor has at least an option to sue for the price. In Re Bettman-Johnson Co., 250 Fed. 666. In Puerto Rico the said vendor is not obliged first to séll the property for which he retains the title but may begin an action for the price. Indeed, we should question whether where promissory notes are indorsed to a third person, an action to recover the property would lie. An estoppel might arise.

We find no substantial error and the appeal should be dismissed as frivolous.