
    Santiago, Plaintiff-Appellee-Appellant, v. Ares, Defendant-Appellant-Appellee.
    Appeal from the District Court of San Juan, Section 2, in an Action of Debt and Non-fulfilment of Contract. .
    No. 1644.
    Decided June 29, 1917.
    Lease — Non-payment op Rent — Rescission—Solidary Surety — Damages.—In this case a contract was entered into for the lease of an urban property for a term of two years at a fixed monthly rental with solidary security. In clause 3 of the contract it was agreed that if two monthly instalments of rent should become due and not be paid, this fact alone would be understood to rescind the contract and give the lessor a cause of action in unlawful de-tainer against the lessee; and in clause 11 it was stipulated that the solidary surety should be bound to respond for eaeh and all of the obligations contracted by the lessee. Held: That the agreement set out in clause 3 does not imply that the solidary security should be limited to default in the payment of the rent for two months, for the rescission of the contract for failure to pay the rent for two months involves only the express recognition of the right which section 1459 of the Civil Code gives to the lessor and lessee; that the action to rescind the contract is a privilege which the lessor and lessee may exercise at their pleasure and it is optional with them to claim damages only, leaving the contract in force; that clause 11 is conceived in general terms and its effects cannot be limited by clause 3, which refers only to the lessor and lessee.
    Id. — Solidary Surety — Extinction op Debt — Bankruptcy.—When it does not appear that the debt for which a solidary surety is sued has been collected by the creditor in whole or in part, the claim which the creditor may have been able to make before the District Court of the United States for Porto Rico in bankruptcy proceedings against the principal debtor does not bar an action of debt by him against the solidary surety, and the burden is upon the latter to prove the total or partial extinction of the debt, as the ease may be.
    Id. — Appeal—Costs—Attorney Fees — Discretion op Court. — An appeal having been taken from the judgment because it did not impose the costs and attorney fees upon the defendant, it was held that in view of all the circumstances of the case the court did not abuse the discretion given it by section 327 of Code of Civil Procedure, as amended by the Act of March 12, 190S, and therefore its finding would not be disturbed.
    Tlie facts are stated in tlie opinion.
    
      Mr. Carmelo Honoré for the plaintiff.
    
      Mr. Rafael Martinez Alvarez for tlie defendant.
   Mr. Chief Justice Hernández

delivered tlie opinion of tlie court.

On November 18, 1914, José Pilar Santiago filed a complaint in the District Court of San Juan, Section 2, against Joaquín Rodríguez Ema and Francisco Ares Fernández to recover $510, the unpaid rent of a house leased to the first-named defendant with the second as solidary surety. He also claimed legal interest up to date of payment, together with the costs, expenses and attorney fees.

On March 3, 1915, after both defendants had answered the said complaint, another supplementary complaint was filed, praying that the amount sued for he increased by $520 for further rent instalments due and unpaid.

On March 16, 1915, defendant Arés answered the supplementary complaint and on January 7, 1916, filed a supplementary answer praying for the dismissal of the complaint on the ground that the plaintiff had made an identical claim in the bankruptcy proceedings of Joaquín Rodríguez Ema in the District Court of the United States for Porto Rico. Thereupon the plaintiff amended his complaint to the effect that the action should be understood as brought exclusively against Francisco Ares Fernández, because the other debtor, Joaquín Rodríguez Ema, had been adjudged a bankrupt and was insolvent, and that any judgment rendered was to be against the former, only.

The case coming on for trial, the District Court of San Juan, Section 1, rendered judgment on July 26, 1916, sustaining the complaint and adjudging that defendant Francisco Ares Fernández pay $900 to the plaintiff, together with interest amounting to $91.93 and the costs of the suit.

Both the plaintiff and the defendant appealed to this court from the judgment, the latter against the judgment as a whole and the former because the court failed to adjudge that the defendant pay the expenses and.attorney fees as prayed for in the complaint.

The defendant-appellant bases his appeal on the sole ground that he is under obligation to pay to the plaintiff only, two monthly instalments, or $260, under the contract of lease in question.

The said contract was entered into in a public instrument executed on December 9, 1913, and refers to an urban property which José Pilar Santiago leased to Joaquín Rodriguez Ema for a term of two years, with option to renew, at a monthly rental of $130 payable within the first eight days after the monthly instalment became due. In clause 3 of the contract it is expressly stipulated “that should two-monthly instalments become due and be unpaid, the present contract shall be understood to be rescinded for that reason alone and the lessor may bring an action to evict the lessee.” Clause 11 reads as follows: “Francisco Ares hereby constitutes himself solidary surety of 'Joaquín Rodríguez andr as such, binds himself to answer for all and each of the obligations which the latter has contracted.”

The wording of clauses 3 and 11 transcribed herein plainly shows that defendant Francisco Arés became solidary surety for the payment of the rent instalments which the lessee might fail to pay. The stipulation in clause 3 does not imply that the solidary security should be limited to the failure of the payment of two monthly instalments, for the rescission of the contract for the sole reason of failure to pay two monthly instalments when due imports only the express acknowledgment of the right which section 1459 of the Civil Code confers upon the lessor and the lessee in providing that in case of failure to perform the obligations assumed by them they may sue for the rescission of the contract and for damages, or leave the contract in force and sue for damages only.

The action to rescind the contract is a right of which the lessor and lessee may avail themselves if they see fit, or they may freely elect to claim damages only and leave the contract in force. Clause 11 is worded in general terms and its effect cannot be restricted by the stipulations of clause 3 which refer only to the lessor and the lessee.

In support of his appeal the defendant-appellant also contends that as an action to recover said amount was pending before the District Court of the United States for Porto Eico in the bankruptcy proceedings of Joaquín Rodríguez Ema and as the debt was not liquidated, the plaintiff cannot recover twice for the same claim nor more than what is due to him.

It appears from the record that on April 19, 1915, in the bankruptcy proceedings in the matter of Joaquín Rodriguez Ema before the District Court of the United States for Porto Rico, José Pilar Santiago filed a claim for the sum of $563..33, which amount the bankrupt owed him for the rent of a house from November 1, 1914, to March 10, 1915, at $130 monthly, and that on April 11, 1916, the referee made a schedule of claims, including that of José Pilar Santiago for the said amount, and declared a dividend of 9 per cent. It is not shown that said dividend has been paid to the plaintiff.

José Pilar Santiago testifies that he withdrew his claim from the District Court of the United States for Porto Rico' because it was not given, preference, and his attorney in that court also testified to the same effect, although over the objection of the defendant that the best and only evidence of the said withdrawal would be the certificate of the referee. For the purposes of this case the contention that José Pilar Santiago filed a claim in the District Court of the United States for Porto Rico for the recovery of his debt in the bankruptcy proceedings of Joaquín Rodríguez Ema, and the objection made by. the attorney of José Pilar Santiago to the testimony, are immaterial, for section 1111 of the Civil Code, which is applicable to solidary sureties according to section 1723 of the same code, provides as follows:

“A creditor may sue any of the joint debtors or all of them simultaneously. The actions instituted against one shall not be an obstacle for those that may be brought subsequently against the others, as long as it does not appear that the debt has been collected in full. ’7

It does not appear that José Pilar Santiago has collected the .debt now sued for by him, either in whole or in part, from the solidary surety, Francisco Arés Fernandez; therefore tlie claim filed in the District Court of the United States for Porto Eico does not estop him from bringing an action to recover against the solidary surety. The burden is upon the latter to prove the extinguishment of the debt in whole or in part and he has produced no evidence on that point. The only thing that could discharge the obligation is payment, and that has not been proved in the present case. Quiñones v. Vivoni, 20 P.R. R. 458, and Cintrón & Aboy v. Solá, 22 P. R. R. 245.

As to the plaintiff’s appeal from the judgment of the District Court of San Juan in regard to the failure of the court to adjudge that the defendant pay the disbursements and attorney fees, we do not find, after considering all the circum,'stances of the case, that the said court abused the discretion ■vested in it by section 327 of the Code of Civil Procedure, :as amended by the Act of March 12, 1908, and, therefore, we do not feel incliiied to disturb its holding.

Por the foregoing reasons the judgment appealed from should be

Affirmed.

Justices Wolf, del Toro and Hutchison concurred.

Mr.' Justice Aldrey took no part in the decision of this case.  