Rivera v. Crescioni

77 P.R. 43

• Court: Supreme Court of Puerto Rico
• Decided: August 4, 1954
• Docket: No. 10725
• Status: Published

Opinions

Mr. Justice Ortiz

delivered the opinion of the Court,

Julián R. Rivera filed in the former District Court of San Juan a complaint “for nonperformance of contract” against Francisco A. Crescioni, alleging that plaintiff sold to defendant 1,500 cartons or cases, each containing 24 cans, of native juice, “to be shipped to the city of New York for purposes of sale, for which the defendant was bound to pay to the plaintiff the sum of $2.10 per carton . . . upon arrival of the merchandise in New York and removal by the defendant”; that two shipments were made, the first of 500 cartons and the second of 1,000, for which Crescioni did not pay and still owes to Rivera the sum of $3,150, which represents the total selling price of those cartons; that in addition defendant owes to plaintiff the sum of $77 for expenses incurred by the latter in the storage and transportation of 577 cartons which the defendant returned to Puerto Rico, “plus 6 per cent legal interest on the aggregate of the sums due up to date, which defendant refuses to pay notwithstanding the repeated demands made by plaintiff.” Plaintiff urged the court to order the defendant to pay him the aforesaid sums of $3,150, $77 for storage and transportation, in addition to legal interest at the rate of 6 per cent on the aggregate sum, $500 for attorney’s fees, and the costs.

Defendant Crescioni answered the complaint denying that plaintiff sold him the cartons in question, “but that plaintiff himself, while in Puerto Rico, shipped, paid freight-age, and consigned to Centaur Trading Company, in New York, the merchandise in question, for which the consignee, namely, the defendant, was bound to pay after it was sold in New York”; that there was involved an agreement of consignment; that the defendant returned 600 cartons to plaintiff, and that the remaining 900 cartons consigned for sale in New York are stored in New York, at plaintiff’s disposal, and that the juices are in bad condition for human consumption.

After a hearing of the case on the merits, the San Juan Court rendered judgment ordering the defendant to pay to plaintiff the sum of $1,580, plus costs, and $200 for attorney’s fees. The court made the following findings of fact and conclusions of law:

“Findings of Fact

“1. That plaintiff is over 21 years of age, married, a businessman, and resident of Santurce, Puerto Rico; and that the defendant is also over 21 years of age, married, proprietor, and a resident of the municipal district of Río Piedras, Puerto Rico.

“2. That on March 10, 1949, the defendant was the owner and President of the Centaur Trading Company, a commission business, with principal offices in the city of New York, United States of America; and that plaintiff was the owner of the Tropical Fruit Industry, of Puerto Rico, a native-juice canning business for purposes of exportation.

“3. That plaintiff and defendant transacted mutual business in their respective branches, the former consigning to the latter canned juice from Puerto Rico. Plaintiff shipped to the United States, consigned to the defendant, the product which was the object of the transaction.

“4. That on March 10, 1949, after paying the freightage, plaintiff shipped to New York, consigned to Centaur Trading Company (defendant), 1,000 cartons, each containing 24 cans of tamarind and guanábana juice, for which defendant was bound to pay to plaintiff the sum of $2.10 per carton after the merchandise was sold in New York.

“5. That about one month later plaintiff shipped to New York 500 cartons of juice, each containing 24 cans, consigned to the defendant, under the same conditions as the first 1,000 cartons mentioned above.

“6. That of these 1,500 cartons the defendant returned to plaintiff 600 cartons, which the latter disposed of after removing them from one of the piers in San Juan.

“7. That defendant disposed of the remaining 900 cartons in New York and did not return them to plaintiff, as he could have done and did with the 600 cartons above mentioned.

“8. That the value of the said 900 cartons of canned juice at the time of the transaction was $2.10 each, or a total of $1,890.

“9. That plaintiff received from the defendant the sum of $300 on account of the juices.

“Conclusions of Law

“In view of the findings of fact made by the court, the ■court is of the opinion that the defendant owes to plaintiff the sum of $1,590 in payment of 900 cartons, each containing 24-cans of juice, at the price of $2.10 per carton, less $300 already received by the defendant. Although it is true that the contract was one of consignment, and that the defendant was entitled to return, and did return to plaintiff, 600 cartons which were spoiled, he retained 900 cartons and disposed of them at his will, and he is therefore bound to pay for them.

“Judgment will be rendered in favor of plaintiff for the sum of $1,580, plus the costs of this suit, and the sum of $200 for attorney’s fees.” ‘

Defendant appealed to this Court.

At the hearing of the case, plaintiff testified in part that he had made a verbal contract with the defendant for the sale of the cartons of juice, and that Crescioni had purchased the juice directly from him at $2.10 per carton. However, Enrique Coll Moya, plaintiff’s witness and employee, testified that he was present when Rivera and Crescioni made the verbal contract, and that Crescioni said to plaintiff: “Well, let us do business. I am going to New York and, if you give me the representation, I will sell those juices there in New York,” and that the business was transacted on the basis of $2.10 per carton. In his testimony, the defendant stated in part as follows: “At his suggestion that he wished to sell them, I agreed to ship them to New York to be sold there, and to pay for them as soon as they xoere sold at the rate of $2.10 f.o.b. New York ... (I would pay for the juices) as soon as they ivere sold. . . . whatever I sold, the difference in that price ($2.10), was for our benefit.” (Italics ours.) He was asked as follows: “Then the agreement was that you accepted provided they were consigned to your firm in New York, and that you would pay if you sold them?”, to which the defendant answered as a witness: “To guarantee the payment if it was sold ... at $2.10 per carton.”

The court of first instance disbelieved plaintiff’s testimony to the effect that the original contract made by the. parties had been one of purchase and sale, and that Cres-cioni had purchased the juice directly from plaintiff. Rather,, the lower court believed the theory of the defendant, as witness, set forth above, and found that the defendant “was-bound to pay to plaintiff $2.10 per carton after the merchandise was sold in New York.” We must respect and give effect to that finding which is supported by the evidence.

There was a specific contract between the parties, whereby defendant Crescioni assumed the obligation to pay to plaintiff $2.10 per carton of juice cans as soon as they were sold to a third person. The uncontroverted evidence: showed that the defendant sold all the 1,500 cartons to Ángel Victor Albandoz before the juice arrived in New York.. Therefore, the condition in the contract between plaintiff and defendant whereby the latter was bound to pay $2.10' per carton to plaintiff was met. Such obligation arose conclusively when defendant sold the entire 1,500 cartons to> Albandoz. As soon as the sale was made to Albandoz, the defendant incurred a liquidated and absolute debt in favor of plaintiff for the sum of $3,150 (1,500 X $2.10).

The San Juan Court held that the contract was-one of consignment, and that defendant’s obligation to pay the sum of $1,890 to plaintiff (900 X $2.10) arose from the fact that the defendant, after returning 600 cartons to plaintiff, failed to return the remaining 900 cartons. However, defendant’s indebtedness is not based on the failure to return, the cartons, but on the performance of the condition set forth, in the contract between the parties concerning the sale of" the juices by defendant to a third person, the performance of which resulted in the creation of a liquidated and absolute indebtedness on the part of the defendant to plaintiff, on the-: basis of $2.10 per carton. The appeal is from the judgment and not from the grounds thereof, and the judgment was valid in so far as it predicated and gauged defendant’s liability on the payment to plaintiff of the sum of $2.10 per carton.

From the point of view of the reality of the existence of defendant’s obligation to pay $2.10 per carton to plaintiff, we need not determine specifically, in view of the facts herein involved, the juridical classification of the transaction between the parties, that is, whether it was a consignment, a commercial commission contract, or a commercial purchase and sale. We are merely concerned with a contract between the parties in which there was fulfilled the condition therein set forth as basis for the legal creation of a liquidated debt by the defendant in favor of plaintiff. Irrespective of how the contractual relation between the parties is labelled, the fact is that the defendant incurred an absolute obligation in favor of plaintiff and failed to perform it.

In its findings and judgment the lower court held that the defendant returned 600 cartons to plaintiff, which the latter accepted, the implication being that plaintiff has no claim against the defendant to the said 600 cartons. Plaintiff has not appealed to this Court from the judgment, especially from the pronouncement unfavorable to him, and, in the absence of such challenge before this Court, we can not rule whether or not the pronouncement of the San Juan Court releasing the defendant from liability as to the said 600 cartons was null and void. This is also true as to the holding of the lower court that “plaintiff received from the defendant the sum of $300 on account of the juices.” In any event, irrespective of the legal grounds relied on by the San Juan Court, it acted correctly in holding defendant liable for the payment to plaintiff of the sum of $2.10 per carton as respects the 900 cartons (less the sum of $300 already mentioned). Such pronouncement is ratified for the reasons herein set forth.

The theory set up by defendant-appellant in his brief is that he was unable to return to plaintiff the remaining 900 cartons in view of the request of plaintiff himself not to return them. However, as has been seen, defendant’s liability is not predicated on the fact that he did not return the cartons but on the fulfillment of the condition precedent set forth in the contract.

The question of plaintiff’s right to interest at 6 per cent on the amount due him by the defendant, to be computed from the date defendant’s liquidated obligation was incurred, namely, from the moment defendant sold the cartons to Albandoz, has been under the consideration of this Court. Plaintiff claimed such interest in his complaint and, actually, he had a right to it as indemnity for the default committed by Crescioni upon his failure to pay. Section 1061 of the Civil Code provides as follows:

“Should the obligation consist in the payment of a sum of money, and the debtor should be in default, the indemnity for losses and damages, should there not be a stipulation to the contrary, shall consist in the payment of the interest agreed upon, and should there be no agreement, in that of the legal interest.

“Until another rate is fixed by the Government, interest at the rate of six per cent per annum shall be considered as legal.”

In this connection, see Martínez Fernández & Cía., S. en C. v. Garcia, 68 P.R.R. 363, 369; Sucs. de Pérez Bros v. Sucs. of Abarca, 33 P.R.R. 102, 104; Del Río v. Sastre, 9 P.R.R. 174; and Cajigas v. Succession of Prats, 5 P.R.R. 142. Section 234 of the Code of Commerce provides that “Debtors who delay the payment of their debts after the same have fallen due, must pay, from the day following that on which it became due, the interest agreed upon in such case, or in the absence of such agreement, the legal interest.” See Cintron & Aboy v. Solá, 22 P.R.R. 245. See, also, Act No. 5, approved August 17, 1933 (Spec. Sess. Laws, p. 26).

The defendant herein committed default at the time he sold to Albandoz, and from that moment plaintiff was entitled to interest at 6 per cent, by way of indemnity, namely, from the date defendant actually became liable therefor. Sucs. of Pérez Bros. v. Sucs. of Abarca, supra. However, the court of first instance did not include in its judgment any pronouncement on interest, nor order the defendant to pay interest to plaintiff. Notwithstanding that omission, plaintiff did not appeal to this Court from the judgment rendered by the lower court, nor challenge the omission of the trial court to order the defendant to pay interest. This Court can not add to the judgment any specific indemnity for damages if the person entitled to such indemnity has not appealed to this Court from the omission of the court of first instance to include such indemnity in its judgment, that is, if the person entitled to receive payment of the indemnity has not challenged such omission before this Court. An appellate court will not increase the amount of a judgment, especially as to indemnities for damages, where the party in whose favor the judgment was rendered has not appealed or presented any question in the appellate court as to the amount of the judgment. 5 C.J.S. 1375, § 1883, note 79; Lee v. William Bailey Corp., 196 N. E. 9, 11; Kerens Nat. Bank v. Stockton, 40 S. W. 2d 7.

In Padilla v. Vidal, 71 P.R.R. 483, 492, it is held that although interest is not mentioned in the judgment, such interest, by express provision of the law, is a part of the judgment and recoverable. In that case, interest should be considered automatically as part of the judgment, by express provision of the law. However, default interest is not in the same category. It is not an integral part or inherently inseverable from the principal obligation, but is considered as an independent indemnity for damages, by way of penalty, for default in payment. As such indemnity, which is a personal right of the creditor, it may be waived by the creditor by not appealing to this Court from the failure of the lower court to order its payment. We are not concerned with a penalty automatically attached to the principal obligation by express provision of the law. Therefore, no pronouncement on the payment of interest is in order.

The judgment appealed from will be affirmed.

Mr. Justice Sifre concurs in the result.