Ismert Hinke Milling Co. v. Muñoz

37 P.R. 762

• Court: Supreme Court of Puerto Rico
• Decided: March 7, 1928
• Docket: No. 4272
• Status: Published

Opinion

Mr. Justice Wole

delivered the opinion of the court.

The District Court of Humacao rendered a judgment for the plaintiff corporation in an amount exceeding $1,300 and an appeal is duly before us.

The complaint said that the plaintiff was a corporation domiciled in Missouri with its principal office in Kansas City, Mo., while the proof showed that the said corporation was domiciled in Kansas.

The answer accepted the statement of the complaint and the capacity of the plaintiff in this regard was not drawn into question. Houston Packing Co. v. Pagán López & Co., 20 P.R.R. 233; Meunier Freres v. Amil, 25 P.R.R. 738. Still in plaintiff’s own interest it was necessary to establish its own identity and this we think it did successfully.

Kansas City, Missouri, is on the border line of the State of Missouri with a river separating it from Kansas. There is a Kansas City, Kansas, connected by a bridge or bridges with Kansas City, Missouri. The two places have a great many commercial interests in common. We shall not stop to inquire whether we may take judicial notice of these facts, because the error was insubstantial and the complaint capable of being considered as amended even on appeal in conformity with our decision in the cases of Valdés v. People of Porto Rico, 31 P.R.R. 213, and Dragoni v. U. S. Fire Insurance Co., 36 P.R.R. 425.

The defendant alleged the incapacity of the plaintiff on another ground, namely, that as a foreign corporation it had attempted to do business in Porto Rico without being duly registered in the. office of the Executive Secretary of Porto Rico. The suit was on a draft accepted but not paid. The defense alleged was a failure of consideration although no attempt was made to prove this averment.

Even on the theory that the goods delivered were worthless, the incapacity alleged could not be maintained. The plaintiff was doing business in Porto Rico merely by reason of a sale made proceeding from Kansas, as was the case here. The idea of our statute is not to prevent sales from the continent of the United States to Porto Rico, but to prevent a foreign corporation from setting itself up in business here without obtaining registration.

Tlie statute fixes a penalty, moreover, for violation, and the free intercourse between all parts of tbe United States would estop a defendant from buying goods and tben refusing to pay tbe price. A purchaser of goods may not enricb bimself in tbis way. Tbis is indicated in tbe cases first cited herein.

There is some intimation in tbe brief of tbe appellant that tbe acceptance of tbe draft was an act in Porto Rico. Tbe acceptance was still not tbe doing of business here and tbe contention is markedly frivolous. Tbe decision in Royal Bank of Canada v. McCormick, 27 P.R.R. 383, is applicable.

Tbe draft was made payable to tbe order of tbe First National Bank, Kansas, City, Missouri. Tbe bank attempted to collect it, but was never anything more than tbe agent of tbe plaintiff corporation, which was always tbe owner and bolder of tbe said draft. Code of Commerce, section 480; Law of Evidence, art. 102, pars. 11 and 13.

Tbe court below said:

“With regard to the ownership of the obligation, the same is at present in the drawer, it being a disputable presumption ‘that things which a person possesses are owned by him’ (Section 102, Law of Evidence, par. 11), and this being so it must be agreed that such ownership is as if the draft had been taken back from the third person to whose order it was drawn, the ownership thereof reverting to the drawer.”

Hence, tbe defense that an endorsement from tbe bank was necessary is, not at all sound.

Tbe appeal was a frivolous one and of course we find no error in tbe imposition of costs, but tbe appellee admits that tbe court erred in fixing tbe amount sued for at $1,582, instead of $1,282, and tbe judgment should be modified accordingly and tben affirmed.

Mr. Justice Texidor took no part in tbe decision of tbis case.