Colón v. Pou

27 P.R. 275

• Court: Supreme Court of Puerto Rico
• Decided: April 4, 1919
• Docket: No. 1959
• Status: Published

Opinion

Mr. Justice Wole

delivered the opinion of the court.

At the trial in this case it transpired that appellant Lucas Pon in conjunction with Luis P. Yaldevieso jointly and severally executed a promissory note in the sum of $300 and interest. The name of the payee was left in blank, hut the note was delivered to the complainant, Bamón Colón Alvarez, for negotiation. He took it to Leopoldo Cabassa who, after some demur on account of the financial responsibility of the makers, finally agreed to accept the note. Leopoldo Ca-bassa died soon after and the appellee, after an interview or so with the Succession of Cabassa and feeling under a moral obligation to relieve the said succession of the note, took it off their hands. This second delivery took place after the maturity of the note. The appellee filled in his own name on the note and brought suit on it as if he were the original payee.

Luring the trial he offered to amend his complaint to show the facts exactly as they occurred, but, the defendants objecting, he let the complaint stand, on the theory, as we understand it, that the variance, if any, was immaterial. After the development of the facts at the trial the defendants asked leave to amend their answer to allege in effect that defendant Pou was only the surety for defendant Yaldivieso and that the appellee well knew the relation between the sa' defendants. The answer as filed had, so far as it was spy-eifie, merely denied that the defendants had executed the note as described in the complaint. The court refused the amendment and rendered judgment for the complainant as prayed in the complaint. The assignments of error are founded on an alleged variance and the denial of the amendment to the answer.

There was no variance. When the complainants delivered the note in blank it was an authorization or mandate for anyone into whose hands it fell to fill in his own name. And this was true as well before as after maturity, as the only additional defences open to a maker after maturity are those he might have had against the person who accepted the note, in this case Gabassa or his succession. The filling in of the name of the holder has no relation to such defences.

Furthermore, when the appellee purchased the note from the Succession of Cabassa he bought all their rights and actions, and the fact that he sued in his name, supposing it to be a variance, was so immaterial as to fall under sections 136 and 142 of the Code of Civil Procedure, as follows:

“Sec. 136. — No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actualy misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that the party has been so misled, the court may order the pleading to be amended, upon such terms as may be just.”

“Sec. 142. — The court must in every state of an action disregard any error or defect in the pleadings or proceedings which does not affect the substantial 'rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”

There was no error or abuse of discretion in refusing to let the defendants amend. Their undertaking as to any holder or acceptor was as principals jointly and severally. They offered the note as drawn on that theory, and that was their obligation to pay.

On the facts as developed the appellee, by buying the note from the Succession of Cabassa, acquired, the rights of the latter.

The judgment must be

Affirmed.

Chief Justice Hernández and Justices del Toro, Aldrey and Hutchison concurred.