Graham v. Banco Territorial y Agrícola

5 P.R. 345

Opinion

Mr. Justice Figueras,

after making the above statement of facts, delivered the opinion of the court.

The findings of fact and only the first and second conclusions of law are accepted.

The only question to be decided by this court is whether the counter-claim presented by the “Banco Territorial y Agrícola” should be admitted or not; and in case it should be declared to lie, condemn Robert Graham y Fraser to pay, by way of indemnity for losses and damages, nine per cent, interest, on the sum the bank is entitled to recover ont of the fonr thousand five hundred find eighty dollars from the sale of the machinery, to be reckoned from the date when said sum, namely, the balance in the bank’s mortgage credit with interest agreed upon, may be determined in due form.

The claim to said indemnity is derived from the fact that Robert Graham y Fraser, by interposing first an intervention of ownership which was dismissed, and then one of better right in the execution proceedings instituted against the machinery, had prevented the bank from disposing of the money it had on deposit, which circumstance it could not avoid, being a lawful consequence of the last mentioned intervention.

In support of aforesaid claim articles 1101 and 1108 of the old Civil Code are cited, but these provisions imply a prior obligation, and in the present case it does not appear that between Robert Graham y Fraser and the “Banco Territorial y Agrícola” there existed any which had been violated by the former or in the fulfillment whereof he had been guilty of fraud, negligence or delay, for which reason the cause giving rise to the losses and damages claimed is lacking.

The application of article 1902 of aforesaid Code would be more to the purpose in the present case, inasmuch as it provides that a person who, by an act or omission, causes damage to another when there is fault or negligence shall be obliged to repair the damage done; but then it would be necessary to analyze the acts executed by Graham and determine whether they involve the negligence or guilt mentioned in said legal provision, and we would arrive at the conclusion laid down in the decisions of the Supreme Court of Spain, especially in its decision of June 27, 1896, to the effect that “he does not properly consummate a damage who confines himself to demanding a right, more or less clear, before the courts of justice, the imposition of costs being the only corrective applicable in each particular case, when claims not established are dismissed.”

Nor has the existence of damages been established, because there can be no doubt that the sum deposited by reason of the intervention of better right interposed by Graham secures the mortgage credit and interest agreed upon, and, moreover, article 148 of the Mortgage Law prescribed that such part of the interest, which the creditor cannot demand in a foreclosure suit, he may claim in a personal action, being considered with regard thereto, if there be general assignment proceedings, as a creditor protected by a public document; and this being so, the bank has also a clear right of action to recover at the proper time the interest that may be due it from José Ricardo Carazo, and if it recovers said interest, it will hot then have sustained any loss by reason of the mortgage loan entered into with the latter.

On the strength of the foregoing reasons, the counter-claim for the losses and damages referred to is improperly interposed.

Under rule 63 of General Orders No. 118, costs shall always be paid by the litigant who loses his case on all points, and if in other cases the court must give an equitable decision, according to the same rule, it is logically to be inferred that when the claims of both parties absolutely fail to succeed, as happens in the present ease, each of them should pay the costs incurred by himself.

In view of the legal provisions cited in this judgment, articles 358, 360 and 371 of the Law of Civil Procedure, and the act of the Legislative Assembly of March 12, 1903, we adjudge that we should declare and do declare that the intervention of better right interposed by Robert Graham y Fraser to recover Ms credit in preference to others will not lie. It is also declared that the counter-claim set up against the latter by the “Banco Territorial y Agrícola” for losses and damages does not lie; without special imposition of costs in either proceeding, the judgment appealed 'from being affirmed where in conformity herewith, and reversed where not.

Chief Justice Quiñones and Justices Hernández and Mac-Leary concurred. Mr. Justice Sulzbacher did not sit at the hearing of this case.