
    González, Plaintiff and Respondent, v. Cabrero, Defendant and Appellant.
    Appeal from the District Court of Aguadilla in an Action for Performance of Contract.
    No. 1184.
    Decided April 16, 1915.
    Partnership — Civil Partnership — Commercial Partnership. — Both in civil and commercial partnerships each partner is required to contribute to the partnership, or to its capital, the amount agreed upon.
    Id. — Action by Partner — Capacity op Plaintiff — Sufficiency op Complaint.— Even when in an action to compel a special partner to contribute the amount of capital agreed upon the plaintiff does not appear in the name of the industrial and agricultural partnership of which he is the managing partner, if the allegation of the complaint is that he is the managing partner and the prayer of the complaint, is that the defendant be adjudged to pay the said contribution in order to start the business of the firm, the action brought by the plaintiff is in the interest of the firm and not in his own private interest.
    Appeal. — Questions which have not been raised in the lower court cannot be considered on appeal.
    Id. — Error.—It is a well-established rule that courts of appeal will examine only the errors pointed out by the appellant and that the errors alleged by the respondent to have been committed by the lower court will not be taken into consideration.
    Id. — Statement op Case — Judgment Roll — Superfluous Matter. — The complaint and answer need not be transcribed literally in the statement of the case, pursuant to section 299 of the Code of Civil Procedure, as amended by Act No. 70 of March 9, 1911, for they form part of the judgment roll and before approving the statement the judge should strike out all superfluous matter and see that the act is strictly complied with.
    Id. — Transcript op Record — Judgment Roll — Summary op Case. — Although the summary of the case which the judge is required to make in accordance with section 227 of the Code of Civil Procedure, as amended in 1911, does not necessarily form a part of the judgment roll, it is good practice to include it in the transcript of the record for the better guidance of the court.
    The facts are stated in the opinion.
    
      Mr. Carlos Franco Soto for the appellant.
    
      Mr. Luis Mercader for the respondent.
   Mr. Chief Justice Hernández

delivered the opinion of the court.

By a pnblic instrument executed before Notary Juan B. Soto in the town of San Sebastian on December 8, 1913, Leopoldo González, the plaintiff, and Manuel Cabrero Bomán, the defendant, contracted an industrial and agricultural partnership and stipulated, among other things not necessary to be mentioned, the'following: (a) The name of the said firm should he “Leopoldo Gonzalez Badillo, Limited,” domiciled in said town; (b) its duration should be five years from January 1, 1914, subject to extension for another five years by agreement of the partners; (c) its object should he planting and manufacturing tobacco and growing any other agricultural products, for which purposes the necessary factories and branches may he established; (cl) the capital should he $1,000, which defendant Cabrero Román agreed -to contribute as special partner, to bear interest at 12 per cent per annum payable at the end of each year; (e) Leopoldo González Badillo should be the managing partner and as such control the management of the firm, use the firm signature and have charge of such manufactures and cultivation as' should be carried on, but should obtain the consent of the other partner, Cabrero Román, for the purpose of engaging employees and laborers.

On February 25, 1914, Leopoldo González filed a complaint against Manuel Cabrero Román in the District Court of Aguadilla, alleging that he and Cabrero Román had entered into the said agreement and that, notwithstanding, the many demands made upon him, Cabrero had failed to carry out his part of the contract to deliver the $1,000 which he was to contribute as special partner in order that the business of the firm might be started, and praying that Cabrero be adjudged to deliver to the plaintiff the said sum of $1,000 to enable him to begin his duties as managing partner of the firm, also .that he be further ordered to comply with the other terms and conditions of the agreement between them and to pay the costs, including the fees of the plaintiff’s attorney.

In his answer to the complaint defendant Manuel Cabrero Román admitted that he had joined with Leopoldo González in the execution of the instrument forming the industrial and agricultural partnership and had bound himself to contribute $1,000 as special partner, but denied that tbe said sum was to be paid at once in order to start tbe business agreed upon and alleged that it was to be contributed as tbe business requirements might demand and that it was also subject to tjhe securing of suitable property for tbe purposes of tbe partnership, which had not yet been found.

The case was tried and the District Court of Aguadilla rendered judgment on April 30, 1914, to the effect that the defendant must comply with all the terms and conditions of the contract with the plaintiff for the formation of an industrial and agricultural partnership as set out in the public instrument executed before Notary Juan B. Soto in San Sebastián on Decemebr 8, 1913, and more particularly with the obligation contracted by the said defendant to contribute the sum of $1,000 to the said partnership as capital. The judgment concludes as follows:

“Therefore it is ordered and decreed that said defendant Manuel Cabrero Bomán contribute to the said industrial and agricultural partnership known as ‘Leopoldo González y Badillo, Limited,’ the said sum of $1,000, and for that purpose it is ordered that for the present the said defendant retain and hold the said sum at the exclusive disposal of the plaintiff, Leopoldo González, as the managing partner until the partnership may be definitely formed and its operation begun, whereupon, after paying the expenses of the formation of the partnership, .the balance of said capital shall be placed in the safe of the firm. It is understood that the said managing partner cannot dispose of the capital in whole or in part except to invest the same for the benefit of the partnership and to carry out the purposes and principal object for which it was formed. It is further ordered that defendant Manuel Cabrero Roinán pay the costs and attorney’s fees. ’ ’

From the said judgment, the defendant’s attorney appealed to this court, and the appellant assigns the following as grounds for its reversal:

First. Lack of cause of action on the part of the plaintiff, for the partnership as a legal entity and not the plaintiff as a private individual should sue the defendant for the contribution of the $1,000 to the partnership,, according to> sections 1583 and 1584 of the Revised Civil Code and article 170 of the Code of Commerce.

Second. Violation of articles 221 and 225 of the Code of Coinmerce and section 1609 of the Revised Civil Code, because the lack of certain elements for the operation of the partnership, such as the site for the tobacco factory and the lands for planting tobacco, is equivalent to the termination of the object of the partnership, or at all events this would be a good ground for its dissolution; and, besides, in any case a partner has a. right to withdraw, voluntarily from the partnership under certain conditions.

Third. Error in weighing the evidence, for it showed that the plaintiff as the managing partner had looked for a suitable, site and lands for the purposes of the partnership, but that they had not been rented through the fault of the plaintiff himself who has not proved that he exercised due diligence to find them, and this is an essential prerequisite to the obligation of the defendant to contribute the amount sued for:

Let us examine the foregoing grounds.

As to the first, the very statutes cited by the appellant show that'both in civil and commercial partnerships each partner is required to contribute to the partnership, or to its capital, the amount agréed upon,'and consequently defendant Manuel Cabrero Román must contribute to the firm of Leopoldo Gonzalez Badillo, Limited, the sum of $1,000, whi'ch he agreed to contribute in -the public’ instrument of December 8, 1913. ■ '

Although the plaintiff, Leopoldo González, has not appeared in the action expressly in the name of the said firm and as its-managing partner, the allegation of the complaint that he is the managing partner of the industrial and agricultural partnership created by the said instrument, arid the prayer of the complaint that the defendant be adjudgéd to deliver to the plaintiff the sum of $1,000 - tb enable him' to begin bis duties as managing partner, leave no doubt tbat tbe suit to recover tbe said sum was filed by tbe plaintiff in tbe interest of tbe partnership and not in bis own private interest. Defendant Manuel Cabrero Román understood tbis when be did not demur to tbe complaint on tbe ground tbat be bad contracted an obligation with tbe partnership of which they were both members and not with plaintiff' Leopoldo González. It is too late now for bis objection tbat tbe plaintiff has no cause of action especially as tbe defendant has been adjudged to contribute tbe sum of $1,000 to tbe partnership and to bold tbe same at tbe disposal of tbe plaintiff, not as a private individual, but as tbe managing partner of Leopoldo González Badillo, Limited.

As to tbe second ground of appeal, tbe statutes on which tbe same is based are not applicable to tbe case, for none of tbe parties has asked for tbe dissolution. of the firm of Leopoldo González Badillo, Limited, or attempted to withdraw therefrom.

Tbe only question is whether tbe defendant is under obligation to contribute to tbe said partnership tbe sum of $1,000 which be agreed to do by a public instrument. Questions which have not been raised^ in tbe lower court, cannot be brought up for discussion on appeal. .

As to tbe third ground of appeal, after considering tbe articles of partnership together with tbe other evidence introduced at tbe trial, we do not find tbat thé contribution of tbe $1,000 by tbe defendant was subject to tbe fulfilment of the requirement or condition alleged by tbe appellant.

In bis brief tbe respondent asks that tbe judgment appealed from be affirmed with a modification, if possible-, to tbe effect tbat tbe contribution of the capital be made by tbe defendant all at one time, but as tbe respondent did not appeal from tbe said judgment be cannot benefit by the appeal taken by tbe defendant, therefore we have no jurisdiction to consider and decide whether such modification is proper.

“It is a well-established rule that courts of appeal will examine only tbe errors pointed out by the appellant (Jackson v. F. R. W. Co., 14 Cal., 22); and that the errors alleged by the respondent to have been committed by the lower court will not be taken into consideration (Poppe v. Athearn, 42 Cal., 606).” Puig et al. v. Succession of Polanco, 16 P. R. R., 705.

Before concluding we must point out that thé complaint and answer are fully transcribed in the statement of the case, and copies of these pleadings are also included in the judgment roll. Such repetition is unnecessary. In the statement of the casé it is only necessary to refer to the complaint, answer and other pleadings forming part of the judgment roll, in conformity with section 299 of the Code of Civil Procedure as amended by Act No. 70 of March 9,1911, and before approving the statement the judge should strike out all superfluous matter and see that the act is strictly complied with.

Nor does the transcript of the record contain the summary of the case which the judge is required to make in accordance with section 227 of the said code as amended by Áct No. 70 of March 9, 1911, which, summary, although not necessarily forming a part of the judgment roll, is useful to this court as we have decided on other occasions.

For the foregoing reasons the judgment of the District-Court of Aguadilla of April 30, 1914, should be

Affirmed.

Justices Wolf, del Toro, Aldrey and Hutchison concurred.  