
    Baez v. Orsini.
    Appeal from the District Court of Mayagüez.
    No. 5.
    Decided April 4, 1904.
    Conditional Obligations — Enforcement.—In order that conditional obligations may be enforceable, it is neeessary that the condition imposed and mutually accepted by the parties be previously complied with, inasmuch as the acquisition of the rights of said parties depends upon the fulfillment of the condition.
    Id. — Evidence.—The proof of the obligation devolves upon the party who demands fulfillment, and if the plaintiff fails to prove his ease the defendant should be discharged from liability.
    STATEMENT OE THE CASE.
    ' This is a declaratory action instituted in the District Court of Mayagiiez by Bosa Baez, widow of Morin, of age and a resident of that city, represented in this Supreme Court, first by Attorney Pascasio Fajardo, and afterwards by Attorney Manuel F. Bossy y Calderón, plaintiff, against Andrés Orsini y Santini, likewise of age, married and a resident of said city, represented by Attorney José de Diego y Martinez, defendant, for the recovery of a sum of money, which case is pending before us on appeal in cassation for error of law, now ordinary appeal, taken by ¡the plaintiff from the judgment rendered by aforesaid district court. Said judgment reads as follows:
    “Judgment. — In the city of Mayagiiez, December 1, 1902. An oral and public bearing was bad of tbis declaratory action brought in tbis court by Rosa Baez, widow of Morin, of age and a resident of tbis city, represented by Attorney Paseasio Fajardo, as .plaintiff, against Andrés Orsini y Santini, of age, married, and a physician and surgeon, represented by Attorney José de Diego, as defendant, for the recovery of a sum of money.
    “Attorney Paseasio Fajardo, as the representative of Rosa Baez, appeared before tbis court, and prayed that, preparatory to the commencement of execution proceedings, Dr, Andrés Orsini be called upon to acknowledge bis signatures affixed to the foot of accompanying documents, found at folios 1 and 2 of tbis record, in the former of which the said Orsini engaged to pay the plaintiff the sum which in said promissory note he acknowledged that he owed Osvaldo Baez, as soon as the transaction he then had pending with the latter referring to the estate ‘Teresa’ had been effected; the other document dealing with a transaction agreed upon between Osvaldo Baez and Dr. Orsini, under date of January 21 of the current year, with reference to the same estate, which signatures were called in question by the latter, who at the same time denied the existence of the debt.
    ‘ ‘ In view of this denial the same attorney instituted a declaratory action in this court, based upon the following facts: That Osvaldo Baez being under obligation to pay Dr. Orsini, in 1900, the sum of two thousand seven hundred pesos, and the latter, having heard that the plaintiff herein was to receive a certain sum from Isabel Merle, he (Orsini) induced Baez to borrow said money from her, she agreeing to make the loan with the guarantee of Dr. Orsini, as she knew of the transaction pending between the latter and Baez with reference to the estate ‘Teresa;’ that pursuant to this agreement, Orsini, in the promissory note signed by Baez, engaged to pay the borrowed sum, thereby contracting a direct obligation with a conditional clause; that upon presenting to his client the obligation signed by Baez and Orsini, to which sum of two thousand seven hundred pesos the interest must be added, the contract was perfected; that the reason Orsini had for signing said document was that he had pending with Baez an execution against the estate ‘Teresa,’ whereby he would be reimbursed for a certain sum from which was to come the money to meet the promissory note signed by Orsini and Baez in favor of the plaintiff; and that by the private document accompanying exhibit No. 2, it is clearly and conclusively shown that the condition upon which the enforcement of the contract depended had been fulfilled. He prayed that after complying with the legal formalities, the complaint be sustained, with costs against the adverse party.
    “The complaint having been admitted and notice thereof served on the adverse party, Attorney José de Diego appeared on behalf of the latter, and in answer thereto set forth the following facts: That by deed of January 30, 1892, executed before Notary Santiago R. Palmer, of this city, Osvaldo Baez, on his own behalf and as representative of his legitimate brothers, mortgaged in favor of Dr. Orsini, for ten thousand Mexican pesos, interest and costs, the estate ‘ Teresa, ’ situated in Palma Escrita, municipal district of Las Marias, which mortgage was to expire on January 31, 1898; that the obligation having become due and not having been satisfied upon maturity .Orsini instituted executory proceedings, first, in the abolished court of first instance, and afterwards in this district court, the same being prosecuted until by General Orders of January 19th and 31st of 1899, suits of this nature were ordered suspended; that it was then agreed between Orsini and Baez to proceed with the execution under the following conditions: That as the mortgaged estate had been awarded, to Orsini for the sum of $6727.27, American gold, comprising principal and interest, he was to mortgage the property for the same sum, in order to reimburse himself for his money, after which the title to the estate 'Teresa’ would be transferred to Baez or to the person designated by him; it being furthermore agreed that until Baez should recover possession of said estate he was to hold it under a lease at the yearly rental of $807.26;, that said agreement was made on January 21, 1900; and twenty days thereafter, as Baez owed Rosa, of the same surname, $2952.70, it was at their request verbally agreed with Orsini that in effecting the aforesaid mortgage loan, the latter should increase the same so as to include therein the sum of $2952.70, for the purpose of meeting the debt in favor of Rosa Baez, in accordance with which agreement the promissory note in question was signed, this being the only meaning and scope of the words 'pending transaction’ mentioned therein and upon which so much stress has been laid by the plaintiff; that the execution proceedings having been prosecuted to their termination, by an order of April 19th and certificate of May 4, 1901, the mortgaged estate was awarded bo Dr. Orsini in payment of $9180, American gold; that after the award of the property, Orsini endeavored, without success, to negotiate the mortgage loan agreed upon, and under these circumstances, after the lapse of eight months, he applied for a judicial possession with the consent of his debtor, as shown by document No. 2, attached to the complaint, whereby Orsini assigns to Baez securities amounting to $5560 upon the value of the award, but out of pity for the latter, ■on account of his precarious situation; that for this reason the estate ‘Teresa’ came into possession of Orsini for the sum of’$14,740, whereas the same property had been awarded to Baez and his brothers in 1885, for thirteen thousand two hundred and fifty Mexican pesos at the time when it produced eight hundred quintals of coffee which were then worth twenty-five pesos each, and that from the foregoing particulars it follows that the condition contained in the note affixed to the promissory note was not fulfilled nor can the same be fulfilled. He therefore prayed that the complaint be dismissed, with costs against the plaintiff.
    “The parties having been cited for submission of evidence, they proposed that of confession in court, documentary and oral evidence and comparison of handwriting, which was declared pertinent by an order of August 2, last, and directed to be taken with citation of the adverse parties.
    “Among the documents filed by the defendant there is a private •contract signed in this city January 31, 1900, by Osvaldo Baez and Dr. Orsini, as parties thereto, wherein, among other things, it is agreed: 1. That Dr. Orsini, upon becoming owner of the estate ‘Teresa,’ mortgaged to him and against which execution proceedings had been instituted, would be obligated to sell it to Baez, or to the person he might designate, for the sum of $6727.20, American gold; 2. That for the purpose of reimbursing himself for said sum, Orsini was to mortgage the estate for the same amount, such mortgage to expire after a term of not less than six years; 3. That after executing the mortgage, Orsini was to sell the aforesaid estate ‘Teresa’ to the person designated by Baez, thereby relieving himself from all responsibility; 4. That in the case of Dr. Orsini’s •death, his heirs would be bound to the fulfillment of this agreement; and 5. That all the expenses incurred would be for the account of Baez, it being further agreed, by an additional clause, that until Baez could redeem tbe estate ‘Teresa/ Orsini was to lease it to Mm at a yearly rental of $827.26, American gold.
    “Tbe oral trial of the present suit was held on tbe 12th of November last, when, after the taking of evidence, counsel for the parties presented such arguments as were deemed pertinent in support of the claims of their respective clients, and the 24th of the same month having been set for the voting on the judgment, the same was unanimiously approved in open court.
    “In the conduct of this case the rules of procedure have been observed.
    “Judge Luis Méndez Vaz prepared the opinion of the court, as follows:
    “The point at issue in this case being the fulfillment of a conditional obligation, the object of the controversy is to determine whether the condition annexed by Dr. Orsini to the bottom of the document at folio 1 is fulfilled with the document presented by the plaintiff, and found at folio 2, inasmuch as upon such a determination depends the question as to whether or not the aforesaid obligation is demand-able.
    “The note placed by the defendant at the bottom of the document at folio 1 reads: ‘As soon as the transaction is effected, which I have pending with Osvaldo Baez, referring to the estate “Teresa,” I engage to pay Bosa Baez the amount of the above promissory note. Mayagfiez, February 20, 1900. Dr. Andrés Orsini.’ From the letter as well as the spirit of the note set forth, it is to be inferred that the condition upon which depended the performance of the obligation contained therein consisted of a transaction that had already been agreed upon between the aforesaid Orsini and Osvaldo Baez at the time said note was appended, since' neither logically nor grammatically can any other interpretation be given to the words ‘transaction I have pending.’
    “Although the plaintiff has been wholly remiss in showing what the prospective transaction was, upon which depended the performance of the obligation demanded by her in the present suit, the ' defendant, on the contrary, has produced the private document on folio 41 of the record, acknowledged and identified by the grantors and witnesses as the one referred to in the sixth finding of this judgment, and in which is specified the transaction entered into between Dr. Orsini and Osvaldo Baez, upon which the obligation mentioned in aforesaid note was made contingent; for said document, being of prior date, there can be no doubt that the transaction mentioned therein was the only one referred to in the note affixed to the document found at folio 1, the more so, as the plaintiff has failed to prove the existence of any other transaction to which said note could have referred, the same having been appended to aforesaid document, folio 1, in the presence of the plaintiff, who had given her assent thereto, as shown by her confession at the oral trial.
    “The plaintiff has failed to prove that the transaction pending between Orsini and Baez, upon which depended the enforcement of the obligation whose fulfillment is demanded in this suit, had been carried out, nor has she shown what the transaction was, by reason whereof this complaint should be dismissed, inasmuch as in conditional obligations the acquisition of rights depends upon the event constituting the condition; the costs being taxed against the plaintiff, who has lost her ease on all points.
    “The document found at folio 2, signed by Orsini and Baez, is of no importance in this case, nor does it in the least affect the decision of the present controversy, inasmuch as it fails to show that the transaction pending between Orsini and Baez with reference to the estate ‘Teresa,’ alluded to in the note affixed to the document at folio 1, had been carried out, said document showing only that a transaction had been entered into between those gentlemen, having reference to the estate ‘Teresa.’
    “The proof of the obligation devolves upon the party demanding in a court of justice the fulfillment thereof, and actore non pro-bante, absolvitur reus.
    
    “In view of section 1080 et seq., 1113 et seq., of the Civil Code, as also those of the Law of Civil Procedure applicable to the case, and General Order No. 118 and others of application thereto, we adjudge that we should declare and do declare that the present complaint is untenable, and accordingly absolve therefrom the defendant, with costs against the plaintiff.
    “Thus by this our decision, finally adjudging, do we pronounce, command and sign. Arturo Aponte, J. A. Erwin, Luis Méndez Yaz. ’ ’
    From the foregoing judgment counsel for plaintiff, Eosa Baez, took an appeal in cassation for error of law, -which was allowed. The record was sent up to the Supreme Court, with citation of the parties, and the latter haying appeared the appeal was conducted in accordance with the proceedings prescribed by the act of the Legislative Assembly of f this Island, approved March 12, 1903, establishing this Supreme Court as a court of appeals. A day was set for the hearing, at which counsel for the parties appeared.
    
      Messrs. Fajardo and Bossy (Manuel F.), for appellants.
    
      Mr. de Diego, for respondent.
   Mr Chief Justice Quiñoees,

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

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

In view of the legal provisions cited therein, we adjudge that we should affirm and do affirm the aforesaid judgment, with costs against appellant.

Justices Hernández, Fignerás and MacLeary concurred.

Mr. Justice Sulzbacher did not sit at the hearing of this case.  