
    Ochoa Fertilizer Corporation, Plaintiff and Appellee, v. J. Octavio Seix & Co., Inc., Defendant and Appellant.
    No. 5077.
    
    Argued June 5, 1930.
    Decided March 11, 1931.
    
      B. Rivera Zen/as for appellant. J. Ilenry Brown, G. Buiz Nazario and G. JE. González for appellee.
   Mr. Justice Wolf

delivered the opinion of the Court.

The complaint in this case set np that at the instance of the defendant the plaintiff delivered to various persons a certain amount of fertilizer and that the defendant would pay therefor either in notes of the persons to whom the goods were delivered or with the money received by the defendant from such persons. For a certain amount of the fertilizer no payments were made and plaintiff after deducting commissions sued for $6,508.93. A cross-complaint was filed.

The cross-complaint was overruled and although the matter is discussed to some extent, in so far as the discussion is not merely defensive, there is no assignment of errors with regard thereto. Hence the action of the court in overruling the cross-complaint need not be considered.

The appellant is not totally wrong when he says that the action in this case is not one of purchase and sale (compra-venta). -Naturally, if the defendant had ordered goods from the plaintiff to be delivered to other persons, presupposing the delivery, a canse of action would arise. The action here is a little distinct. The defendant was to deliver as he collected according to the complaint itself. This gave rise to the theory, especially on appeal, that the defendant was the mere agent of the plaintiff. Nevertheless the court below, and its considerations are supported or augmented by the brief of the appellee, held or found from the pleadings and the evidence that the defendant ordered the fertilizer and made himself responsible therefor. The defendant practically admitted his responsibility. He was to turn over the cash for the fertilizer sold directly for cash; he was to tender the good notes received and if not accepted pay the cash. The theory of the court that the title of complaint makes little difference if a cause, of action appears from the pleadings and the proof, is a sound one.

We find no error in the weighing of the evidence, the court was justified in imposing the costs and the judgment will be affirmed.  