
    Successors of Saint Laurent & Martínez, Ltd., Plaintiffs and Appellees, v. Honoré, Defendant and Appellant.
    Appeal from tlie District Court of Mayagiiez in an Action of Debt.
    No. 1626.
    Decided April 17, 1917.
    ■Complaint — Amendment—Surprise—Appeal.—When the defendant offers no evidence and there is no basis for his'claim of surprise, or anything to show that he was in any way misled to his prejudice in maintaining his defense on the merits, or that he had any defense to the merits, the plaintiff, after trial and before judgment and with due notice to defendant, may ask for and obtain leave from the court to amend his complaint to conform to the evidence offered by him and admitted without objection. An appeal taken in such circumstances is frivolous, and sections 136, 137, 140 and 142 of the Code of Civil Procedure are applicable to the case.
    The facts are stated in tlie opinion.
    
      21 r. Angel A. Vázquez for tlie appellant.
    
      21 r. Jose 8abater for the appellees.
   Mr. Justice Hutchison

delivered tlie opinion of tlie court.

The original complaint herein alleged:

‘ ‘ L That the plaintiff is a mercantile firm duly constituted under the laws of Porto Rico with its domicile in this city.
"II. That the defendant bought lumber and building’ materia Is from the plaintiff in different lots, both parties carrying current tic-counts which when liquidated by them on August 30, 1916, showed a balance in favor of the plaintiff of $625.61, which was acknowledged by the defendant.
“III. That the parties agreed that the balance of account in favor of the plaintiff should bear interest at 1 per cent per month, and the said account having been liquidated again on August 24, 1914, showed a balance in favor of the plaintiff of $617.96, which is the sum owing by the defendant to the plaintiff, whose account has not been paid either wholly or in part notwithstanding the several demands made upon the defendant therefor.”

The answer was a general denial.

Plaintiff offered in evidence, without any objection whatever by defendant, an instrument purporting the dissolution of the partnership of St. Laurent & Martínez and the formation of a new firm, to wit, “Saint Laurent & Martínez, Su-cesores, S. en C.,” plaintiff herein, executed by Gustavo St. Laurent y Ponce de León, Juan Ramón Martínez and José Ferrer Pilloch on June 3, 1915, the pertinent clauses of which read as follows:

“First. The firm of Saint Laurent & Martinez, which was constituted by the aforesaid deed No. 45, executed in this city on May 28, 1914, was dissolved for all legal purposes on the day on which the term of its legal existence ás such firm expired and the firm constituted under the following clauses will assume The business of the extinguished firm whose assets and liabilities pass to the new firm, under such conditions as shall be stipulated, and the members of the said defunct firm, Messrs. Saint Laurent and Martinez, will consider as valid each and all transactions which might have been made in the name of the extinguished firm, and therefore ratify in all its parts all public documents that may have been executed by the members affecting the real property and property rights of the said firm.
“Second. Firm Name. The new firm of Saint Laurent and Martinez, Successor, a silent partnership, is created and established with its domicile in this city of Mayagüez, as liquidator of the extinguished firm of Saint Laurent and Martinez, with its office- on Comercio Street of this city, at the warehouse of the member Gustavo Saint Laurent, who transfers under lease the lots and deposits to the new society under a contract that will be executed separately.”

Plaintiff also introduced, after full identification and without objection by defendant, the following document:

“Mayagüez, P. R., September, 1914. Sabas Honoré to Saint Laurent and Martinez. Cash value. Debtor: 1914. July 30th. To balance in our favor as per account rendered $619.42. August 30th. To interest to date, $6.19. $625.61. E. and O. E. O. K.: S. Honoré.”

The testimony showed, among’ other things, likewise without objection by defendant, a payment on account on August 24, .1915, a date subsequent to that of the organization of the new firm.

The defendant offered no evidence.

After the trial and before judgment plaintiff, with due notice to defendant, asked and obtained leave to amend the complaint to-conform to the evidence, the first and second paragraphs of the amended pleading reading as follows:

“I. That the plaintiff is a mercantile firm duly constituted under the laws of Porto Rico with its domicile in this city.
“II. That the defendant bought lumber and building materials from the mercantile firm of Saint Laurent & Martinez, the predecessor of the plaintiff firm, in different lots, both parties carrying current accounts which having been liquidated by said predecessor firm of Saint Laurent & Martinez with the defendant on August 30, 1914, showed a balance in favor of said firm of $625.61, which was acknowledged by the defendant, the plaintiff firm assuming the business of the extinguished firm of Saint Laurent & Martinez, the defendant having liquidated and acknowledged his account with the said plaintiff firm; and the plaintiff having taken charge of the total liquidation of said extinguished firm of Saint Laurent & Martinez, all the assets and liabilities of the defunct company passed to the new firm.”

Error is assigned as follows:

“I. The court erred in admitting the new complaint presentee! by the plaintiff.
“II. The court erred in rendering judgment against the defendant. ’ ’

The.facts as stated above, considered in the light of sections 136, 137, 140, and 142 of the Code of Civil Procedure, suffice without argument to show the frivolous character of the appeal. Not only is there no basis whatever for the claim of surprise made, in so far as the record discloses, for the first time on appeal, hut the contention is consistently and conclusively negatived throughout by appellant’s own statement of the case. There is nothing in the record to indicate that defendant was in anywise misled to his prejudice in maintaining his defense on the merits. There is nothing whatever to suggest that defendant had any defense on the merits. In the circumstances any discussion in detail of the alleged errors would he a waste of time and energy.

The judgment must he

Affirmed.

Chief Justice Hernández and Justices "Wolf, del Toro and Aldrey concurred.  