
    Successors of Abarca, Plaintiff and Appellant, v. Eduardo Méndez, Defendant and Appellee.
    No. 5365.
    Argued March 26, 1931.
    Decided November 20, 1931.
    
      Besosa & Besosa for appellant.
    
      José Veray, Jr., for appellee.
   Mr. Justice Audrey

delivered the opinion of the Court.

Successors of Abarca, a commercial partnership at San Juan, sold and delivered to Eduardo Méndez, resident of Aguadilla, an electric plant of the Fairbanks make. In 1929 it brought an action to recover the value of the plant, but the judgment, rendered after a trial de novo, was adverse to the plaintiff, which took the present appeal and has assigned as a first error the improper application of section 1356 of the Civil Code, providing that a sale made subject to approval or trial of the things sold shall always be considered as made under a suspensive condition. The other three errors assigned relate to the weighing of the evidence.

We fail to find from the evidence that the sale in question was made subject to approval or trial, but the judgment may be sustained on another ground, since it appears from said evidence that, the purchaser having repeatedly refused to pay the purchase price on the claim that the plant was a used one, broken, and unserviceable, the seller agreed to take it back and sent one of its employees to get it. ' Méndez told this employee to leave it a few days longer, but on the following day he delivered it to the person designated by the seller, who refused to receive it because he had been instructed by telegraph not to accept it as the matter was already in the courts. •

These facts show that the sale had been rescinded by mutual agreement, and hence the seller was no longer entitled to recover the purchase price, although it could demand the return of the thing sold.

In view of the conclusion we have reached, it is unnecessary to consider the weighing of the evidence on which the lower court based its decision.

Affirmed.  