
    Sobrinos de Portilla v. Quiñones.
    Appeal from the District Court of San Juan.
    No. 47.
    Decided March 7, 1904.
    Obligations — Account.—“When an itemized account, containing all charges item by item, as well as the credits, amounts returned and deductions allowed, has been produced, it is necessary to specifically object to the items thereof, and not by means of vague allegations, and to specifically point out the errors or fraud committed therein.
    Id. — Delay—Interest.—Persons obligated to deliver or to do a thing are in default from the time a judicial or etxra-judieial demand is made upon them for the fulfillment of their obligation, and they thereby become liable to the payment of the interest agreed upon, or, in the absence of an agreement, to the payment of legal interest.
    STATEMENT OE THE CASE.
    This is an action prosecuted in the District Court of San Juan by Sobrinos de Portilla, as plaintiff, represented in this Supreme Court at first by Attorney Hilario Cuevillas, and afterwards by Attorney Jacinto Texidor, against Nicolás Qui-ñones Cabezudo, as defendant, represented by Attorney Rafael López Landrón, for the collection of a debt; which case is pending before us on appeal taken by Nicolás Quiñones Cabe-zudo from the judgment rendered by the aforesaid court, which reads as follows:
    “Judgment. — In the city of San Juan, Porto Rico, April 4, 1903. An oral and public bearing was bad of the declaratory action prosecuted by Attorney Hilario Cuevillas Hernandez on behalf of the industrial firm, Sobrinos de Portilla, of this city, plaintiff, against Nicolás Quiñones Cabezudo, planter, a resident of Caguas, represented by Attorney Rafael López Landrón, for the collection of a debt.
    “Under date of February 2, 1897, and bearing the signature of Quinones Cabezudo, a letter was addressed to Sobrinos de Portilla, which reads as follows: ‘¥e have on hand your valued favor of the 31st ulto. As for the goods pertaining to the bill therein referred to, we find exorbitant the price of five pesos charged for the key, and I hope you will reduce the same. I am now engaged in going over the accounts with your esteemed firm, and when this is done I shall consider the manner of attending to the remittance of funds, for which I am waiting the result of the examination.’ Another letter, dated September 26, 1898, reads: ‘In reply to your previous letters I beg to state that until January next, when I shall commence grinding, it will be impossible for me to go to your city for the purpose of liquidating and settling our accounts. At present there is no sugar nor cash available. Many repairs are required on the machinery, which for the present cannot be attended to from lack of ready money. Please have patience’; the rest of the letter being somewhat unintelligible, .mother, dated February 18, 1898, saying: ‘By bearer, José Ríos, I send you a draft to your order on Antonio Molina for $200 currency. Said Rios may order some articles, provided you both agree on price. When you get out your usual annual price list, please send me a copy for my guidance. I want an abstract of the account current so as to be sure our entries agree.’ Another letter, dated May, 1897, stating that he is forwarding a draft for $400 currency, to be credited to his account; and another of May 21, 1898, advising that as soon as he is released from his numerous occupations he will examine the account; that no one is buying sugar, for which reason planters are without any meáns; and that the small No. 1 suction pump had been returned to them.
    “With the aforesaid letters, Sobrinos de Portilla, on August 15, 1900, brought an- action praying that Nicolás Quiñones Cabezudo be adjudged to pay one thousand six hundred and fifty-two pesos and forty-three centavos, provincial money, or its equivalent in United States currency, with legal interest from the date of the action, and costs, alleging the following facts: Defendant did business with plaintiff, who was accustomed to sell him hardware and perform work for the estate, as shown by the first entry of the account filed by him and which had been presented to Quiñones; said account current had gone on, Portilla sending him an abstract of the same, from time to time, and Quiñones remitting, or not, stuns which did not cover the balance, without stating whether he found it correct or not, and whenever he was urged to do so, he excused himself upon the plea that he had no time to examine the account. This situation was brought to an end by Portilla, who demanded what was due him, citing as grounds of law articles 1901, 1101, 1108 and 1100 of the Civil Code.
    “Defendant, in his answer, asked that the complaint be dismissed and set up a counter-claim praying that the plaintiff be adjudged to produce a verified general itemized account current, and that costs be imposed upon him. He alleged the following facts: That since 1899 Portilla and Quiñones had maintained a running account together, the plaintiff having charge of supplying defendant with hardware, agricultural machinery, accessories and attending to mechanical repairs for the estate, against cash payments on account; that the debits and credits continued, the plaintiff forwarding to Quiñones abstracts of his account, without the itemized account, and Quiñones demanding only that nothing should be dispatched without an order from him; that upon receipt of the accounts he had never omitted to report some error, either objecting to the exorbitant price of some of the items, and recommending moderation in values, or calling his attention to defects in construction, reduction of charges, or to some articles which had been retured; that as the accounts were headed with important balances, he had requested that they be produced from the beginning, which request had never been complied with; that he had ordered several crowns for the rollers of the mill, which were sent, but could not be used; he returned some of these, asking that their cost be deducted from the account, but it was not done; that in 1896 he had sent Portilla a roller for the purpose of having it fastened with wedges and adjusted to the axle; they repaired it and when received by Quiñones it was mounted, but on the second day of grinding the axle shifted from its place, and the cane that had been cut was lost; that on another occasion he had ordered a steam-pump, which was received and fixed in its place, but after working regularly for six or eight months, it ceased to draw and impel the lees (vinazas), and it became necessary to take it to pieces, when it was noticed that its interior was lined with iron instead of brass; that a new roller with its axle proved another failure. As points of law in support of his claim he cited articles 1254, 1258, 1103 to 1106, and 1972.
    ■ ‘ ‘ The plaintiff, in his answer to the counter-claim, prayed that the same be dismissed, with costs against the defendant, alleging the following facts: That it was not true that Portilla had consented to keep a running account with Quiñones or to do any of the things asserted by him, but that he took from the establishment wbat he needed, ordered work, offered to pay, and failed to do so punctually; that when he made purchases a bill was sent him including all the articles and their prices, and it was not true that abstracts of accounts were sent; that there had been no claims, but excuses for not paying, the accounts found correct, for on February 2, 1897,. be reported that he was examining them, and later, on February 18 and March 7, he remitted funds; that the alleging of defective construction, troubles, etc., signified nothing since no manufacturer can be held responsible for defects in machinery not put up by himself, and because on February 18, 1898, he remitted $200, and on March 7, 1897, $400, on account, and an itemized account, with debits and credits, amounting to $1652.43, having been presented, the errors noticed in the'items and values should be specifically pointed out; and citing as grounds of law articles 547 and 548 of the Law of Civil Procedure; that no one can go against his own acts, and that the person who receives an account should either accept or reject it, or signify his objection thereto, instead of making payments on account, and allowing three years to pass without settling the balance.
    “When the case was opened for the admission of evidence, defendant acknowledged the letters introduced by plaintiff, found at folios 38 to 53 of the record, which bear the signature of Zoilo Gi-ménez, as having been written and signed by his order, said letters containing the orders of articles referred to therein; and in one of which letters, dated March 11, 1895, the following statement appears: ‘I am surprised, and very much so, at your refusal to accept the one thousand pesos in settlement of the balance of one thousand two hundred and seventy-five pesos and ninety-eight centavos, for it was so agreed with Don José. If the latter was not authorized to act in the matter, he should have abstained from doing so. The reduction is not so very great, for it includes seventy-two feet of leather belt and other claims I have been insisting upon for some time, as also the claim for a . crown which I returned owing to defects in manufacture. So then, by this transaction, everything would be settled; ’ and in the one dated January 28, 1898, it is said: ‘In a few days I shall ship some sugar to the capital and shall instruct Mr. Antonio Molina to make you- the largest payment possible’; while in one of January 18, 1899, he advised that grinding would begin shortly and for other particulars referred to his attorney, the solicitor, Rafael Arce. Defendant also identified the account of September 22, 1900, showing the amount of his indebtedness to plaintiff, with all the entries from January 17, 1895, and including all the payments and other credits for articles returned and reductions allowed, among which credits appear: one for $300, on July 13, 1896; another on May 21, 1897, for $400; and another on February 26, 1898, for $200; the goods ordered, subsequently to the latter credit, amounting to $76.30. Said account having been balanced in December, 1896, showing a debit of $2577.84, which, with payments and deductions aggregating $670.25, was reduced to $1907.25 in December, 1896; then, with new orders, it was increased to $2288.29 on February 26, 1898, and after deducting therefrom $635.86 of reductions and payments, it showed a balance of $1652.43.
    “The plaintiff proposed as evidence defendant’s confession in court to the effect that he had never made any agreement with Porti-lla; that in order to settle up and dismiss the subject, he had offered those gentlemen a certain sum which he ordered Antonio Molina to pay, reserving his right to make a claim afterwards, if there were occasion for it; that he was at that time under the impression that he owed them nothing; but he needed some work to be done by the firm, and as it was a question of preventing losses to the estate, and one thousand pesos would not ruin a planter, he ordered the money to be paid; that he could not state positively that the payment was made, because his agent had charge of these matters; that Zoilo Giménez was the sugar expert of the estate, but was no longer there, Bamón Quiño-nes Cabezudo being then a manager; that he had never dealt with the firm of Portilla for putting up the pieces of machinery on the estate, the mounting having been done under the direction of Frederick Brover, a well-known mechanical engineer; that he had received all the accounts of Portilla and had handed them over to either the court or to Mr. López Landrón, according to his belief, but he could not say positively that those presented by Mr. López Landrón and filed with the record were the ones that he had had in his possession.
    “Upon comparing the account showing the amount due by the ■defendant- to the plaintiff with the books of the latter, the items were found to have been duly entered in the journal and accounts-eurrent book, without any errors, said boobs being stamped and legalized. Defendant being called upon to present the accounts and documents received from Portilla referred for this purpose to his lawyer, who presented them, together with the account he rendered on January 23, 1895, opening with January 15, 1894, and closing with a balance of $1249.49 in favor of Portilla, all the others produced, since 1888, being ■of earlier date, except the one opening December 20, 1896, and closing February 26, 1898, with the balance forming the subject-matter ■of the complaint, to which reference has already been made in the preceding paragraph, and wherein appeared, credits and reductions aggregating $635.86.
    
      “The expert witnesses testified that- foundries and establishments engaged in the sale of machinery are not responsible for internal defects in the pieces thereof, unless bound by contract. This is because the best and most carefully cast pieces are liable to have flaws which cannot be avoided or detected. Nor do they engage to guarantee the result of machinery sold, unless put up by themselves, because when the mounting is done by careless or inexperienced hands it is apt to work badly or to break.
    “The defendant submitted as evidence plaintiff’s confession in court to the effect that the previous accounts were closed from 1894 with the one thousand pesos paid by Quiñones, and that the account from 1895 to 1899 was a new one; that before closing the account for 1894, claims were made by Quiñones which were deducted therefrom,that Quiñones Cabezudo had acknowledged the accounts as shown by the letters, and whenever goods were sent him he acknowledged the receipt thereof, and that the balance had been adjusted with a party who had been sent to Caguas for the purpose. Upon requisition Ochoa Hermanos exhibited the entry in their boob, made under date of October '2, 1893, which reads': ‘Nicolás Quiñones. To expenses one case of machinery received for his account by steamer “Olinde Rodriguez” on the 5th inst.’; report óf Sobrinos de Ezquiaga stating that it appears on the books that Don Nicolás Quiñones Cabezudo sailed for Spain on mail steamer ‘Alfonso XII,’ August 15, 1892, it being impossible to find out on what steamer he had returned because there was no detailed memoranda, the steamers giving out only a simple list of passengers, and this could not be found. Three witnesses testified that plaintiff and defendant kept a running account, the former supplying machinery to the latter, who had no specified time in which to make payments; that the latter (Quiñones) had presented several claims for goods out of gear and returned some of the pieces. This had happened eight or ten years ago, according to one witness, and nine or ten years, according to the other two witnesses, one of whom testified that as to the account in those days, and another witness who claimed to be a practical engineer, and therefore without a title, testified that while acting as such on the estate, he had seen crowns cast by Portilla break, Quiñones being obliged to order them from England; that the breaking of the crowns had occurred some ten years ago, and that the estate had no extra crowns or rollers; that the axle of the roller had shifted three days after it had been adjusted, Quiñones being compelled to stop grinding, which entailed tbe loss of most of the cane that had been cut; that also a' pump that had done good service for eight months stopped working, and upon examination it was found that the parts had shifted and that the interior lining was not of brass; that one of the pieces of a roller was worn out, and shortly after putting up the one ordered from Portilla it was noticed that it had become loose, it being necessary to dismount it and have it fixed; and that the pieces were not examined when received.
    “All the evidence having been taken, counsel for both parties presented their arguments, after which the court rendered judgment, Judge José Tons Soto dissenting:
    “Presiding Judge Juan Morera Martínez prepared the opinion of the court.
    “The defendant has admitted in his answer to the complaint that he had maintained an account with Portilla, who supplied him with iron wares, tools and accessories, and made repairs of machinery for him, against cash payments, and all this implies an acknowledgment of the account presented by the plaintiff, and therefore the obligation to controvert specifically such items as might contain fraud or error, so as to make them the object of the discussion and evidence in those two stages of the hearing.
    “Errors in accounts cannot be opposed by means of indefinite .allegations, but by pointing out the figure wherein the alleged error or fraud has been committed. The plaintiff had in due time presented the accounts to the defendant, which, at the request of the former, were submitted by the latter’s counsel. Said accounts had been settled and closed up to 1894, with the one thousand pesos paid by Quiñones, as has been admitted by both parties at the hearing, and therefore those dating from 1895 to 1898 were new accounts.
    “The claims urged by the defendant, according to his own witnesses, refer to nine or ten years back, and therefore have nothing to do with the balance of the account at issue, but are included in the settlement or agreement admitted to have been arrived at by both plaintiff and defendant, when the account for 1894 was closed. Nor can the claim referring to 1896, for a roller and defect in the adjustment of an axle, be considered, because said roller not having been mounted by Portilla nor any mechanic, and the incident occurring three days after it had been put up, the plaintiff cannot be held responsible in this case or others of the same nature, nor could such a responsibility be justified by tbe evidence and attending circumstances.
    “Tbe account which, forms the subject-matter of the complaint not only contains all the charges, in detail, but also the credits for payments, goods returned and deductions allowed, during 1896, 1897 and 1898, showing a balance of $1652.43, which is the amount demanded; and inasmuch as this demand involves an action for goods sold and delivered, or for the outstanding balance thereof, the vague and evasive replies of defendant as to the delivery and acceptance of the goods sold, the moderation of the prices charged and his defaults in payments, are not sufficient to release him or furnish ground for a counter-claim; while on the other hand the evidence referred to, and especially his letters filed with the record and acknowledged by him, leave no doubt as to those three essential points, the more so when it has been shown that he in due time had received the detailed accounts, and notwithstanding the time elapsed, had never specifically objected to the items thereof.
    “Persons obliged to deliver or to do something are in default from the moment when the creditor demands the fulfillment of their obligation, judicially or extra judicially, the obligation in case of default consisting in the payment either of the interest agreed upon, or the legal interest.
    “In view of articles 1067, 1075, 1403, 1404, 1500 and 1501 of the Civil Code, and article 326 of the Code of Commerce, we adjudge that we should declare and do declare that the action brought by the firm of Sobrinos de Portilla against Nicolás Quiñones Cabezudo, does lie, and dismissing the counter-claim, condemn the defendant to pay the plaintiff the sum of one thousand six hundred and fifty-two pesos and forty-three centavos, balance of his account, or its equivalent in IT. S. gold, with legal interest thereon, at the legal rate from the date the said defendant was summoned to answer the complaint, and impose upon him the costs.
    ‘£ Thus by our decision, finally adjudging, we pronounce, order and sign. Juan Morera Martínez, Frank H. Richmond, José Tous Soto.”
    Notice of the foregoing judgment having been served upon said Nicolás Quiñones Cabezudo, he took an appeal therefrom, which was allowed, and the record forwarded to this court after citation of the parties, during the period determined by law. Upon their appearance the appeal was conducted under the proper procedure, a day. being set for the hearing, at which counsel for the respective parties offered such arguments as were pertinent to their respective claims.
    
      Mr. Rafael López Landrón, for appellant.
    
      Messrs. Guevillas and Texidor, for respondent.
   Mr. Justice Sulzbacher,

after making the above statement of facts, delivered the opinion of the court.

The findings of fact and conclusions of law of the judgment appealed from are accepted.

In view of the legal provisions cited therein, we adjudge that we should affirm and do affirm the judgment rendered on April 4, 1903, by the District Court of San Juan, with costs against appellant. The record is ordered to be returned with the proper certificate.

Chief Justice Quiñones and Justices Hernández, Figueras and MacLeary concurred.  