
    Carlo Hermanos v. Colberg & Martínez.
    Appeal from the District Court of Mayagiiez.
    No. 25.
    Decided November 16, 1903.
    Purchase and Sale.- — The vendor is not bound to deliver the thing sold, if the vendee has failed to pay the price, or has been declared insolvent.
    Reservation oe Rights. — When no reservation of rights is requested by the plaintiff, none should be made in his favor in the judgment of the court.
    ■ STATEMENT OE THE CASE.
    This was a declaratory action prosecuted in the District Court of Mayagiiez by the firm of Carlo Hermanos of said city, as plaintiffs, and, on account of the failure of said firm, continued afterwards in the District Court of the United States by Gerardo Castelló, as judicial liquidator of said firm, represented by attorney Ramón Roura, against Colberg & Martinez, merchants of Cabo-Rojo, as defendants, represented by attorney José de Diego, for the recovery of a sum of money, which case is pending before us on appeal in cassation for violation of law taken by counsel for plaintiffs, from the judgment rendered by aforesaid District Court, which literally reads as follows:
    “Judgment: In the City of Mayagiiez, February twelfth, one thousand nine hundred and three. An oral and public hearing was had in this civil .suit, prosecuted by Carlo Hermanos, merchants domiciled in this city, as plaintiffs, and afterwards, on account of their failure, continued in the District Court of the United States by Gerardo Castelló, as judicial liquidator of said firm, represented by attorney Ramón Roura against Colberg & Martinez, as defendants, domiciled in Cabo-Rojo, defended by attorney José ■de Diego, for the recovery of a sum of money.
    By private document executed June 1, 1901, by Colberg & Martinez (Ltd.) and Carlo Hermanos, filed with Notario Mariano Riera Palmer, who inserted it in public document No. 673 of his protocol, under date of September 20, 1901, Colberg & Martinez, lessees of the saltponds called “Cande-laria” and “Fraternidad”, in Cabo Rojo, sold to Carlo Hermanos six thousand fanegass of salt of the stock on hand and to be turned out, in .aforesaid ponds, at the price of one dollar U. S. currency, for each fanega, the amount thereof to be paid in the following manner: one thousand five iundred dollars, cash down, a promissory note made by Carlo Hermanos, for one thousand, dollars, payable to the order of the vendors and maturing-on September 1, 1901, one thousand five hundred dollars in another note, due December 1, 1901, one thousand dollars .in another note for March 1,. 1902, and the balance of one thousand dollars in another note payable June-1, 1902, the vendors acknowledging receipt to their satisfaction of the money and the notes.
    In said private contract, inserted in the deed referred to, its duration was. fixed for one year from the date thereof to June 1, 1902, Colberg & Martinez agreeing not to sell salt from the leased ponds to any other person or firm in the market during said period so that the whole output should be-exclusively for the vendees; and if at the expiration of the twelve months,, there remained in the ponds any quantity of salt to be withdrawn, belonging; to the latter, an extension of two months should be allowed them to dispose of the same, both parties binding themselves to make good to each other such damages as might result from non-fulfillment of the contract.
    After an attempt at conciliation, Carlo Hermanos brought an action in the District Court of Mayagüez, based upon the facts as stated above and citing articles 1091, 1096, 1100, 1101, 1106, 1254, 1255, 1256, 1278, 1281, 1445 and 1461 of the old Civil Code, and Rule 63 of General Order of August 10, 1899, praying that Colberg & Martinez be adjudged to deliver to them within three days, four thousand five hundred and eight fanegas of salt, which, with the fourteen hundred and ninety-two received, completed the six thousand fanegas sold to Carlo Hermanos, or otherwise to return within the same period, four thousand five hundred and eight dollars corresponding to the number of fanegas they had failed to deliver, and also to pay two thousand dollars for damages caused to plaintiffs through their non-compliance with the terms of the contract of purchase and sale, and that the costs be expressly taxed against defendants.
    The complaint was answered by Colberg & Martinez, who alleged that Carlo Hermanos had not taken up, as they fell due, the notes representing that portion of the price which was payable in installments, there remaining unpaid, among other notes, one for fifteen hundred dollars, matured June 1, 1902, which document having been endorsed by Colberg & Martinez to the order of the “Banco Territorial y Agrícola”, the latter had been obliged to institute proceedings against the debtors, for identification of signature, preparatory to the executory action; that upon the expiration of the period fixed in the contract Colberg & Martinez had retained the quantity of salt that had not been delivered, becaused Carlo Hermanos had failed to take up the notes, and because the defendants could make use of the additional two months agreed in the contract, which did not expire until August 1, Carlo. Hermanos having hastened to bring their action on July 24; that nothwith-standing their right to retain all the salt, they sent some of it in July to Cario Hermanos, which the latter refused to receive; that Colberg & Martinez had to hold back some salt to secure the price of the sale and no damage had been caused to Carlo Hermanos thereby. And citing as legal authority the provisions of articles 1466, 1467, 1170 and 1127 of the Civil Code, as also articles 467 and 532 of the Code of Commerce, they prayed that the complaint be dismissed and the defendants absolved, and that costs be expressly taxed against the plaintiffs.
    A day having been set for the proposal of evidence, the court admitted such as was proposed by the parties.
    By a writing dated September 5, 1902, José Carmelo Carlo, on behalf of Carlo Hermanos, deposed that among the debtors which he remembered there appeared Colberg & Martinez for one thousand dollars, the amount of a note endorsed to the “Banco Territorial y Agrícola,” which document was before the District Court.
    Counsel for Colberg & Martinez asked that evidence be introduced to show that the action instituted by the “Banco Territorial y Agrícola” against Carlo Hermanos had abated owing to the latter having been declared in bankruptcy, by order of the District Court of the United States, which request was acquiesced in by counsel for the liquidator of Carlo Hermanos, for which reason said evidence was attached to the record in ,the case.
    At the hearing in this case all the legal requirements have been observed. Presiding Judge Arturo Aponte y Rodriguez prepared the opinion of the court, which was unanimously approved:
    “ The salt having been sold by Colberg & Martinez to Carlo Hermanos, and the latter having failed to pay in full the price agreed, the defendants are not obliged to deliver the property sold, either because the price thereof has not been paid, or because the vendees, Carlo Hermanos, have been declared insolvent, for such is the meaning of their bankruptcy before the District Court of the United States.
    Carlo Hermanos having failed to prove the delivery of the price of the’ salt purchased by them, it cannot be admitted that Colberg & Martinez should deliver a thing which has not been paid for, or return what they have not received, and much less that they should indemnify any one for damages the existence whereof has not been legally proven.
    Although Carlo Hermanos have not paid the full value of the salt pur. chased by them, it seems natural and logical that they should be entitled to the delivery of the quantity of the salt purchased or the return of the money for the undelivered portion thereof.
    In view of articles 1466 and 1467 of the old Civil Code, corresponding to articles 1369 and 1370 of the Civil Code now in force, and rule 63 of General Order No. 118, series of 1899, we adjudge that we should dismiss the complaint herein, and accordingly Colberg & Martinez are absolved therefrom with, costs against the plaintiffs whose rights are reserved to be enforced by them in the proper manner, and against whomsoever they may deem proper.
    Thus, by this our judgment, do we pronounce, command and sign. — Arturo Aponte. — J. A. Erwin. — Luis Mendez Yaz.”
    From the foregoing judgment counsel for plaintiffs took an appeal in cassation for error of law, which was allowed. The record having been forwarded to this Supreme Court, the parties were summoned, and the appellant having appeared, the appeal was proceeded with in conformity with the provisions of an act of the Legislative Assembly, approved March 12, 1903, establishing this Supreme Court as a court of appeals. A day was set for the hearing at which only counsel for appellant appeared.
    
      Mr. Fcdcón, for appellant.
    The respondent did not appear.
   Me.. Chief Justice Quiñones,

after making the above statement of facts, delivered the following opinion of the court:

The findings of fact of the judgment appealed, are accepted, as also the conclusions of law, excepting the last; for inasmuch as Carlo Hermanos, in their complaint, did not request any reservation of rights, the reservation made in their favor in the judgment appealed from, is idle and serves no purpose.

We adjudge that we should affirm and do affirm the aforesaid judgment, in so far as it dismisses the complaint and absolves therefrom Colberg & Martinez, with costs of both proceedings against appellant. .

Justices Hernández, Sulzbacher and MacLeary, concurred.

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