Piovanetti Antonsanti v. Vivaldi Pacheco

80 P.R. 108

• Court: Supreme Court of Puerto Rico
• Decided: June 28, 1957
• Docket: No. 11594
• Status: Published

Opinions

Mr. Justice Saldaña

delivered the opinion of the Court.

By deed executed on January 20, 1925, plaintiff Domingo Piovanetti and his wife constituted a voluntary mortgage on a property to secure to defendant Vivaldi the payment of the sum of $2,100 principal on a loan with interest at 12 per cent per annum and $250 for costs, expenses and attorney’s fees in case of judicial claim. The mortgaged property was community property belonging to the debtors. They bound themselves to pay the principal in three installments, the last of which was due on January 1, 1928. Furthermore, the following was stipulated as to the interest: “the interest stipulated in this contract is 12 per cent per annum, which the debtors bind themselves to pay to the creditor Antonio Vivaldi Pacheco in annual payments as they become due.” Said mortgage was duly recorded in the Registry of Property. Subsequently, when the mortgagors failed to comply with the obligation to pay, the mortgagee (defendant herein) filed a summary foreclosure proceeding to obtain the secured credits. In his original petition, which he filed on February 21, 1929, he made the following computations:

Principal of the debt. $2,100.00

Interest at 12 per cent until January 29, 1929.-. 1,008.00

$3,108. 00

Credit of interest. 500. 00

Difference $2, 608. 00

Expenses, costs and foreclosure fees. 250. 00

Total $2, 858. 00

The mortgagee also claimed in said petition “the interest on $2,100 from January 29, 1929, at 12 per cent per annum until the total liquidation of the debt.”

The foreclosing creditor having complied with the other requirements of the summary proceeding, the Marshal of the Court served the debtor Domingo Piovanetti with process, on March 11, 1929, and after 30 days had elapsed without the debtor making the payment, the mortgaged property was ordered to be sold at public auction on July 6, 1929, at the instance of the mortgagee. The property was foreclosed according to the provisions of law. Finally, it was awarded to the mortgagee for the sum of $250 as against his claim and the corresponding deed of judicial sale of the property was executed and recorded in the Registry in the name of Vivaldi Pacheco, as it still appears at present.

In 1953 the mortgagor Piovanetti and the heirs of his wife filed the present action of revendication and recovery of fruits on the ground that the summary foreclosure proceeding is void. In their complaint and at the trial in the Superior Court they alleged as grounds for such nullity: first, that the mortgagee was charging more than the amount due as principal and interest of the mortgage debt, since a certain deposit of $500 made to the mortgagee in 1925 reduced the principal to the sum of $1,831; and second, that the Marshal of the court did not serve the wife of the mortgagor with process.

The case was heard and the lower court dismissed the complaint. As a question of fact it determined that the credit of $500 was made in the year 1928; that on that date a sum exceeding that amount was owed as interest due on the principal debt; and that the aforesaid sum was actually credited to such overdue interest as was stated in the initial petition of the foreclosure proceeding.¹ It further held that, since the property in question was community property, the service of process made by the marshal of the court on the husband, was sufficient. Therefore, it held that “the mortgagee and now defendant claimed in the foreclosure proceeding only the amounts which were really and actually owed to him as principal, interest, costs and fees of the mortgage credit,” and that said summary proceeding “was valid in all its parts as well as the adjudication of the property ... to the mortgagee.” ²

In this appeal brought by the plaintiffs, it is pointed out in the first place that the summary foreclosure proceeding is void because the mortgagor’s wife was not personally served with process by the marshal of the court. Actually, this assignment does not deserve serious consideration. The wife is not a necessary party in a suit where it is intended to collect a debt secured by real property belonging to the conjugal partnership and, therefore, the case law has established that the service of process made to the husband as legal representative of the conjugal partnership suffices in a foreclosure proceeding. Porto Rican Leaf Tobacco Co. v. Ereño, 16 P.R.R. 96 (1910), and Torres v. Lothrop, Luce & Co. et al., 16 P.R.R. 172, 177 (1910). See, also, Muñoz Morales, Lecciones de Derecho Hipotecario, Vol. II, pp. 195 and 210.

In the second place, plaintiffs allege that the summary foreclosure proceeding filed by the defendant is null because the mortgagee could not charge interest at the rate of 12 per cent from maturity date until final payment of the debt, which he did as stated in the initial petition on record. Although the appellee admits that there was no stipulation either in the loan contract or in the mortgage concerning interest after the expiration of the contractual term or in case of default, yet he alleges that he was entitled to recover interest at 12 per cent per annum on the principal of the loan within the summary foreclosure proceeding “up to the time of maturity as well as in case of default . . . because this was the only rate of interest stipulated in said mortgage contract.” He further alleges that the ground of annulment to which this second assignment of error refers was never specifically raised in the Superior Court and that, therefore, it is a new question which may not be raised on appeal.

Before going any further, we must point out as an initial step to analyze the questions raised, that the mortgage deed merely stipulated the interest to be paid on the principal of the loan during the term of the contract. There was no agreement as to interest after maturity of the debt. Ñor was there any agreement as to interest in case of default. This fact clearly appears from the only stipulation concerning interest which is set forth in the loan contract attached to the mortgage deed: “The interest stipulated in this contract is 12 per cent per annum, which the debtors bind themselves to pay to the creditor Antonio Vivaldi Pacheco in annual payments as they become due.” The sense of' said clause leaves no room for doubt and its scope may not be changed by spurious interpretations: the debtor only bound himself to pay interest for the duration of the loan contract.

Taking into account what was agreed in the deed concerning the interest that the debtor was bound to pay to the mortgagee, such interest at the rate of 12 per cent after maturity of the obligation could not be recovered in a summary foreclosure proceeding. The only interest that could be claimed was legal interest at the rate of 6 per cent per annum from the date the mortgagor defaulted. This has been repeatedly held by this Court in a long line of cases. See, among others, Buil v. Banco Popular, 69 P.R.R. 237 (1948) ; Arvelo v. Román, 65 P.R.R. 699 (1946); Figueroa v. Boneta, 58 P.R.R. 811 (1941) ; Cabrera v. Morales, 57 P.R.R. 445 (1940) ; Caraballo v. Registrar, 48 P.R.R. 902 (1935) ; Goico v. Rodriguez, 28 P.R.R. 493 (1920) ; and 30 P.R.R. 563 (1922). Of course, the loan contract may provide that not only shall interest be paid during the contractual term of the debt but also after maturity date. For example: upon stipulating the rate of annual interest on the principal of the loan, the contracting parties may expressly provide in the mortgage deed that the sum loaned shall accrue interest “until its total reimbursement” (Figueroa Rodriguez v. Ramirez, 36 P.R.R. 826) or “until the indebtedness is fully settled” (Torres v. Fernández, 65 P.R.R. 584) or “until full payment” (F. Rodriguez Hnos. & Co. v. Ahoy, 66 P.R.R. 498). In all those cases we held that the creditor may recover in a summary foreclosure proceeding all interest due and unpaid up to the total liquidation of the principal debt where there is no third party whose interests might be prejudiced. Sections 114, 145 and 147 of the Mortgage Law (30 L.P.R.A. § § 210, 258 and 260). However, in the absence of such express agreement the only interest which the principal of the loan accrues, after maturity of the obligation, is the legal interest at the rate of 6 per cent per annum from the date on which the debtor is in default. The jurisprudential norms stated apply and develop the statutory rule that, whether in civil or in commercial loans no interest shall accrue unless there is an agreement to that effect. Section 1646 of the Civil Code (1930 ed.), 31 L.P.R.A. § 4573, and § 232 of the Code of Commerce (1932), 10 L.P.R.A. § 1654.

In the case of Altuna v. Ortiz, 12 P.R.R. 318 (1907), which was implicitly overruled by this Court in subsequent cases, we held that the creditor may recover in the foreclosure proceeding all interest due up to the total liquidation of the principal debt at the agreed rate of 9 per cent per annum, even if the debtor only bound himself to return the principal sum loaned “on August 31, 1899 with interest at the rate of 9 per cent per annum payable annually at the end of each year.” Said decision was based exclusively on the provisions of § § 114 and 147 of the Mortgage Law:

“A mortgage constituted to secure a credit which earns interest, shall secure with regard to third persons, in addition to the principal, only the interest for the two years last past and that part of the current year which may have accrued.” (Art. 114)

“A mortgage creditor may proceed against the property mortgaged to recover interest due, no matter at what time the principal is payable; but if there should be a third person interested in said property whom the proceedings might prejudice, the sum demanded can not exceed a sum representing the unpaid interest due for the two years last past and the part due for the current year.” (Art. 147)

However, those sections of our Mortgage Law do not provide for any suppletory juridical rule in the absence of an express agreement as to the payment of interest on the principal of a loan after maturity of the obligation. The only purpose of the aforesaid sections is to establish to what degree does the mortgage securing the principal credit also extends to the interest which has been stipulated in the deed, at a fixed rate, when the interested parties have not expressly agreed that such interest shall be secured by the mortgage. In other words, when the interest stipulated in the mortgage has not been expressly guaranteed, § 114 of the Mortgage Law establishes that by operation of law the mortgage secures in addition to the principal, the interest earned by the credit against subsequent purchasers up to the top rate therein indicated. And under § 147, even if the parties have not expressly secured by mortgage the interest agreed on the principal credit, they may recover within the foreclosure proceeding all interest stipulated therein (which are due, unpaid and have not prescribed) if no acts of alienation or encumbrance on the mortgaged property have been executed and, hence, there is no third person who might be prejudiced. Morell, Comentarios a la Legislación Hipotecaria, Vol. Ill pp. 736 et seq. (2d ed.) ; Roca Sastre, Derecho Hipotecario, Vol. IV, pp. 267 et seq. See Torres v. Fernández, supra.3 But when the interested parties make no agreements in the deed as to interest after the maturity date, and on the contrary, they only stipulate interest during the contractual term, § § 114 and 147 of the Mortgage Law do not repeal the provisions of the Civil Code and of the Code of Commerce to the effect that interest shall not accrue unless there is an express agreement to that effect.

The mortgage is always accessory to the loan contract. Thus, it is essential to separate two problems: first, what did the parties agree as to the payment of interest in the loan contract?, and second, what interest is secured by the mortgaged property? The first question does not depend at all on the Mortgage Law. It must be decided bearing in mind only the will of the parties which in the matter of contracts is a law which must be obeyed, as well as the suppletory provisions contained in the Civil Code and in the Code of Commerce. The second does depend on the provisions of § § 114, 145 and 147 of our Mortgage Law for then it must be determined what portion of the interest earned by the credit (stipulated between the parties) is secured by mortgage against the original mortgagor or against third purchasers. Thus, Morell, referring to the aforesaid § 114 of the Mortgage Law, states the following:

“Barrachina, presents the following question: Does the fact that the mortgage is extended to the interest includes only the interest accrued and not paid within the term of the loan contract, or also the interest running after the expiration of the term of the contract, which interest accrues only because the mortgagee has failed to foreclose the property after the guaranteed obligation has matured?

“ ‘The legal provision,’ he says, ‘is conclusive; it does not distinguish between different kinds of annual payments; the mortgage secures them all if no prejudice is caused to a third party; if there is a third party, either because he has acquired the real property or because it is encumbered in his favor, the release from responsibility occurs and the mortgage only secures the interest corresponding to such annual payments; which means that the mortgage burden entails, in that respect, two responsibilities: one concerning the principal credit, the other the interest limited to the period of time previously referred to; a criterion that renders the words “shall secure,” employed in the provision which covers these two responsibilities, as meaning the unit of guarantee of the mortgagee’s right, running hand in hand with the unit thing encumbered by the obligation, of principal as well as of interest.

“ ‘There is no law compelling the mortgagee to foreclose as soon as the obligation expires; he already knows that the latter prescribes and in the course of the 20 years which is the lifetime of the mortgage foreclosure proceeding, he avails of his right by not claiming; he will suffer enough prejudice if he lets year after year run without collecting the interest, for he may fall squarely within § 114 if there are other subsequent mortgagees, and for such reason he will be entitled only, as a penalty for his passiveness, to interest for not more than three years.’

“Now then; as to the interest subsequent to the maturity date of the obligation, one must adhere to whatever is deemed proper under the stipulations of the contract to that effect, for it might happen that only interest at the legal rate may be recovered from the time it is lawfully inferred that the mortgagor incurred in default.” (Italics ours.) 3 Morell, Comen-tarios a la Legislación Hipotecaria (2d ed., 1928) 745-46.⁴

It is true that Roca Sastre, referring to § 114 of the Mortgage Law, states that the interest accrued after expiration of the debt “is earned within a period of implied extension of the contractual term,” adducing the argument that “if it were not so the law would rather impel the creditor to exercise his right of foreclosure depriving the mortgagor of the comfort which he derives from the tolerance of the mortgagee in referring from claiming the reimbursement of the loan . . .” (Derecho Hipotecario, Vol. 4, p. 274). But we find no legal justification whatsoever for the alleged theory that by operation of law there is always an implied extension after the expiration of the obligation which permits the mortgagee to recover interest at the rate agreed for the term of the contract. If there is no agreement concerning the interest after the expiration of the debt, the mortgagee may only recover, in addition to the interest accrued during the contractual term, the interest at the legal rate from the date the mortgagor is in default. See § § 1053-61 of the Civil Code of Puerto Rico (1930 ed.), 31 L.P.R.A. § § 3017-25. This last rule, contrary to Roca Sastre’s theory, is in our opinion more favorable to the mortgagor, for, as a general rule, it tends to reduce the rate -of interest. Furthermore, if the mortgagee demands interest in excess of 6 per cent, as a condition for not claiming the return of the loan, it would suffice to execute another -mortgage deed.

In the case at bar, the default interest began to '.run from the maturity date of the obligation for the mortgagee extra judicially required the mortgagor to pay the obligation on the same day of maturity and default. We need not decide whether the mortgagor of an obligation by installments which consists in payment of money is in default from the date of maturity without need of judicial or extrajudicial demand on the part of the mortgagee. Pursuant to § 1053 of the Civil Code of Puerto Rico (31 L.P.R.A. §3017), demand by the creditor is not necessary to create the default where the designation of the time when the thing should have been surrendered was an operative factor to establish the obligation. This notwithstanding, the doctrine maintains that, as far as civil obligations by instalments are concerned, even when they consist in the payment of money, the demand is necessary to create default. See Manresa, Código Civil Español, Yol. VII (5th ed.), pp. 124 et seq.; 243 et seq.; Scaevola, Código Civil, Vol. XIX, pp. 451 et seq.; Castán, Derecho Civil Español, Vol. Ill, pp. 140 et seq. Of course, the demand by the creditor is not necessary to create the default when the obligation expressly provides for it. And as to commercial obligations in contracts in which a day is fixed for compliance therewith by the will of the parties or by law, the effects of delay shall begin on the day following the one on which they fall due. Section 94 of the Code of Commerce (1932) 10 L.P.R.A. § 1314.⁵ Often, these questions become academic, since in the promissory notes, loan contracts and mortgages to secure the loans,. the parties as a rule expressly stipulate the interest that the debt shall earn after maturity or they provide that the demand by the creditor shall not be necessary to create default once the obligation is not performed.

In short, therefore, in the summary foreclosure proceeding the mortgagee (defendant-appellee herein) claimed interest at 12 per cent per annum after the total expiration of the debt, when actually he could only recover the default interest at the rate of 6 per cent per annum. There is no question that such action renders null the foreclosure proceeding. In the first place, it is necessary to adhere strictly to the procedures and requirements of the summary proceeding, and any departure therefrom shall render the action void. In the second place, the claim of excessive interest which is not secured by mortgage, constitutes a substantial error in prejudice of the mortgagor’s rights and consequently, invalidates the summary foreclosure proceeding. See, for example: Buil v. Banco Popular, supra; Torres v. Fernán-dez, supra; Figueroa v. Boneta, supra; and Vazquez v. Gutiérrez, 52 P.R.R. 162 (1937).⁶ There still remains to consider, however, appellee’s contention to the effect that the aforesaid ground of annulment was not raised in the lower ‘court for which reason it may not be raised now on appeal.

In truth, the question concerning the rate of inter"est due after maturity date was never raised in the lower court. The nullity of the summary foreclosure proceeding was alleged, in general terms, because “the mortgagee was charging more than the amount owed as principal and/or interest ... ”, but specifically the only ground adduced to support said contention was that the plaintiffs made a deposit of $500 in 1925 of which $231 should have been credited to past-due interest and $269 to the mortgage debt, thus reducing the principal of the loan to the sum of $1,831. And, on the basis of the evidence introduced, the trial judge determined that said deposit was made in 1928 and that it was duly credited to the interest due and unpaid. We must not forget, however, that it was proved at the trial: first, that the agreement between the parties was to pay 12 per cent interest only during the term of the contract; and second, that the creditor in the foreclosure proceeding claimed interest at the rate of 12 per cent per annum after maturity date. Both are unquestionable facts which appear from the mortgage deed and from the original petition of the summary foreclosure proceeding, which were introduced and admitted in evidence in the lower court.

In our opinion, the question concerning the rate of interest due after maturity constitutes a mere ground to support the basic contention of the plaintiffs: that the foreclosure proceeding is void. The plaintiffs adduced an improper justification of their rights but it is unquestionable that these rights were duly claimed in the Superior Court. There is nothing to prevent us from considering, on appeal, a new right of action which was not raised in the lower court as basis for a contention set forth in the complaint. See Marconi Wireless Co. v. United Stales, 320 U. S. 1, 44 (1943) ; Campbell, Extent to Which Courts of Review Will Consider Questions Not Properly Raised and Preserved, 7 Wise. L. Rev. 91, 160 (1932), 8 id. 147 (1933) ; 4 C.J.S., Appeal and Error, § 242. Moreover, even if such ground was not alleged by the plaintiffs, the complaint must be considered as amended, even on appeal, by the evidence which was introduced without objection at the trial since in this case such implied amendment does not prejudice the defendant, that is to say, he had ample opportunity to defend himself and no additional evidence could change the facts revealed by the mortgage deed and by the initial petition of the summary foreclosure proceeding. See Rule 15(6) of the Rules of Civil Procedure, 32 L.P.R.A. App., R. 15(6); Ponce v„ Badrena e Hijos, Inc., 74 P.R.R. 210, 227 (1952) ; Sosa v. Municipal Housing Authority, 72 P.R.R. 764, 768 (1951); Fernandez v. Condado Beach Hotel, 72 P.R.R. 880, 883 (1951) ; 3 Moore, Federal Practice (2d ed.) pp. 846-48.

Finally, even considering the question of the interest recovered after maturity “as a new question,” we cannot apply in this case the general rule that on appeal this Court “will not consider or decide any question not raised or decided by the court . . . from whose judgment . . . the appeal has been taken.” P. R. Housing Authority v. Sagastivelza, 71 P.R.R. 406, 409 (1950). This principle is not an unbreakable dogma but it has many exceptions and limitations. 3 Am. Jur., Appeal and Error, § § 246 et seq.; 4 C.J.S., Appeal and Error, % § 242 ei seq. Although its usefulness is unquestionable in our procedural system, we must apply it with great caution avoiding the strictness and inflexibility of an automatic rule. Pound, Appellate Procedure in Civil Cases (1941), 133-35, 298-304, 387-88; Raising New Issues on Appeal, 64 Harv. L. Rev. 652 (1951). It is true that at times we have set forth the aforesaid procedural rule with exaggerated latitude.⁷ But undoubtedly we must discard the outmoded theory that an appellant may never change, on appeal, his theory of the case. This is only a ritual which is inconsistent with the need of deciding the cases on the merits. Cf. Moore, op. cit., supra; Clark, Code Pleading (1947), 263; Millar, The Old Regime and the New in Civil Procedure, 14 N.Y.U.L.Q. Rev. 1, 192, 201-03 (1937). See, however, Latorre v. Cruz, 67 P.R.R. 696 (1947). Thus, if the issue raised for the first time on appeal does not actually raise any controversy, but on the ■contrary, only involves a question of law, the determination of which will bring about a final judgment on appeal, we could not refuse to consider it without failing in our ■duty of imparting justice and searching for the truth in each litigation.⁸ A well-ordered system of procedure is essential. But a suit is not a game which should be played within a frame well adjusted to technicalities. Cf. Serta v. Transportation Authority, 68 P.R.R. 581, 584 (1948) ; and Melén-dez v. Iturrondo, 71 P.R.R. 56, 60 (1950). We must repeat it ad nauseam, even if only as a reminder of what everybody admits, because no system of law may survive if, on the basis of procedural niceties which are unnecessary, the possibility of doing substantial justice is smothered.⁹

The judgment will be reversed and the case remanded to the lower court for further proceedings consistent with this opinion.

Mr. Justice Marrero and Mr. Justice Negrón Fernández did not take part herein.

1 Plaintiffs’ contention is that the credit of $500 was made in 1925 reducing the principal of the mortgage loan to the sum of $1,831 and that, therefore, the sum of $231 should have been credited to the interest due and the remaining $269 to the principal owed.

2 Having reached the former conclusion, the Superior Court made no pronouncement concerning the reconvention filed by the defendant in this ease.

3 This is the only doctrine established by the judgments of the Supreme Court of Spain of October 17, 1932 (205 Jurisprudencia Civil 586) and March 18, 1946 (14 Jurisprudencia Civil (2d s.) 160).

4 For that same reason Morell, in commenting § 145 of the Mortgage Law, which provides: “The interest on the loan shall not be held to be secured by the mortgage in the form prescribed by article 114, unless the record itself shall show the agreement and amount of such interest,” merely states that “this article should be a part of § 114, previously commented,” but he adds — and this is very significant — : “pursuant to § 1755 of the Civil Code (corresponding to § 164-6 of our Civil Code— 1930 ed.), interest shall not accrue, unless expressly stipulated.” (Italics ours.) 4 Morell, op. cit., 225.

5 In Cintron & Ahoy v. Sola, 22 P.R.R. 245, 254-55 (1915), it was stated that demand by the creditor was not necessary because it had been expressly stipulated between the parties that the amount owjed would earn interest at 12 per cent per annum in case of default, it being also stated that in the case of a commercial loan the debtors were bound to pay the interest agreed upon on the day following the one on which the interest fell due.

6 The seventh clause of the mortgage deed provided the following: “To secure payment of the loan in question, as well as the interest earned thereby up to the sum of two hundred and fifty dollars, and the costs, expenses and attorney’s fees, in case of judicial claim, to the extent of two hundred and fifty dollars, the spouses Domingo Piovanetti and Clarisa Dumont constitute a voluntary mortgage . . . etc.” But obviously, said special mortgage was only constituted as far as the interest is concerned, to limit the security of the latter to the prejudice of third parties. We have repeatedly held that the same does not refer to the mortgagor unless otherwise clearly and expressly provided. Moreover: here the mortgage was constituted to secure payment of the loan in question whereby it is unquestionable that the mortgagee could recover interest from the original debtor by mortgage even if they exceeded the sum of two hundred and fifty dollars. See Gutiérrez Vda. de Crosas v. Longpré, 44 P.R.R. 643, 653 (1933); Torres v. Fernández, supra, at pp. 631-34; Arvelo v. Román, supra; Diaz v. Quinones, 68 P.R.R. 232 (1S48).

7 See Ex parte Soto, 71 P.R.R. 511 (1950) ; Figueroa v. Guerra, 69 P.R.R. 565 (1949) ; F. Rodriguen Hnos. & Co. v. Ahoy, 66 P.R.R. 521 (1946) ; Flores v. Silva, 60 P.R.R. 863 (1942) ; Municipality v. Public Service Comm.. 58 P.R.R. 276 (1938); McCormick v. McCormick, 52 P.R.R. 669 (1938); Largé & Acevedo v. Fernández, 38 P.R.R. 453. (1928).

8 Hormel v. Helvering, 312 U. S. 552, 556-59 (1940); Marconi Wireless Co. v. United States, 320 U. S. 1, 44 (1943); Pound, op. cit., supra; Raising New Issues on Appeal, 64 Harv. L. Rev. 652 (1951). It is possible that the question of law raised for the first time on appeal depends on facts which might have been proved at the trial but which do not appear of record because one of the parties did not raise the question in the lower court. In that case, generally, we could not consider said question of law on appeal. The reason is obvious: one of the parties would be unduly prejudiced by depriving him of his opportunity to defend himself by introducing additional evidence which he might have introduced in the lower court to confront the question of law which was never raised there. Furthermore, we should point out that certain privileged defenses are waived upon failure to plead them in the lower court, for example: (1) the defense of prescription (Peña v. Eastern Sugar Associates, 75 P.R.R. 288, 308, 321, and Fornaris v. Font, 44 P.R.R. 580); (2) the defense of laches in an injunction suit (Rivera v. He ■Choudens, 63 P.R.R. 955, 958). But the question of lack of jurisdiction over the subject matter may always be raised for the first time on appeal, ■either by the parties or by the court motu propria. Cf. Borinquen Furniture, Inc. v. District Court, 78 P.R.R. 858, 859-60 (1956); West India Oil Co. v. Buscaglia, Treas., 66 P.R.R. 102 (1946); Russell & Co. v. Public Service Commission, 66 P.R.R. 355 (1946). As to other additional defenses, based on the invalidity of a contract or the unconstitutionality ■of a law, Cf. Raising New Issues on Appeal, 64 Harv. L. Rev. 661-62 <1951).

9 As stated by Mr. Justice Cardozo in Reed v. Allen, 286 U. S. 191, 209 (1932): “A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity.” Cf. also: L. Hand, The Speech of Justice, 29 Harv. L.. Rev. 617 (1916); F. Cohen, Ethical Systems and Legal Ideals (1933); Cann, The Sense of Injustice (1949); id., Moral Decision: Right and Wrong, in the Light of American Law (1955); Castán, La Idea de Equidad y su Relación con Otros Conceptos, Morales y Jurídicos, Afines, 188 Rev. de Legis. y Jurisp. 217, 361 (1950); id., La Formulación Judicial', del Derecho (1954).