
    Barros v. Vicente Et Al.
    Appeal from the District Court of San Juan.
    No. 69.
    Decided October 30, 1903.
    Acquiescence oe Defendant. — Acquiescence, in its legal signification, means the agreement of the defendant to the request or demand of the plaintiff.
    Construction of Agreement — The limit and extent of the stipulations of the parties in an agreement must he understood and explained according to the terms of the instrument containing- the same, and without applying them to things or cases not expressly provided for therein.
    STATEMENT OE THE CASE.
    This was an action prosecuted in the District Court of San Juan by Emilio Barros Rodriguez, as plaintiff, who was represented and defended before this Supreme Court by his counsel, Rafael López Landrón, against Vicente de Vicente y Vicente, Joaquín Fontán y Ozor.es, Severo de Vicente y Vicente, Evaristo Freiría y Rolán and Ramón Rodríguez y Ozores, as defendants, represented and defended by tjieir counsel, Wenceslao Bosch, in the matter of fulfillment of a contract and indemnification for damages and losses, which case is pending before us on appeal in cassation for error of law, now appeal, taken by plaintiff, from the judgment rendered by ■ aforesaid district court, • which literally reads as follows:
    “ In the City of San Juan, Porto Rico, September twenty-sixth, one thous- and nine hundred and two. The hearing having been had in this declaratory action prosecuted by Emilio Barros y Rodriguez, a resident and merchant of this City, represented by his counsel, Rafael López Landrón, as plaintiff, and Evaristo Freiría y Rolán, Ramiro Rodríguez y Ozores and Severo de Vicente y Vicente, merchants of this City, represented by their counsel Wences-lao Bosch, as defendants, for the fulfillment óf a contract and indemnification for damages and losses.
    Emilio Barros y Rodriguez brought an action in this court against Emilio Rolán y Vicente, Evaristo Freiría y Rolán and Ramiro Rodríguez Ozores, to compel them to act in accord with him in all the operations and transactions that may be effected for the liquidation of the firm business of “Suceso-res de Vicente & Co., en liquidación”, leaving without effect all that have been carried out without his intervention, including the payment made to Deogracias Querol, both plaintiff and defendants to execute a deed' of compromise in all eases of disagreement, or a rescission in default thereof, with express indemnity in all cases, and payment of costs by defendants.
    The facts set up in the complaint are as follows: By deed executed before notary Mauricio Guerra, on September 13, 1900, recorded in the Commercial .Register, Emilio Rolan, as attorney-in-fact of Vicente de Vicente y Vicente, Joaquín Fontán y Ozores, Severo de Vicente y Vicente, Evaristo Freiría y Rolan, and Ramiro Rodríguez y Ozores and the plaintiff, declared that the firm of “Sucesores de Vicente & Co.” had been dissolved; that it was so declared in clause 2 of said deed, liquidators being constituted in the following words : “The parties appearing state that all four are appointed liquidators, with the right to use, indiscriminately, the firm signature of “Sucesores de Vicente & Co., en liquidación;” in clause 6 : “the four liquidators shall act by common consent in all the operations and transactions to be carried out for the purposes of the liquidation, and such differences as may arise among them shall be submitted to the decision of friendly arbitrators to be appointed, three by Emilio Rolán, because he represented three of the interested parties, and one by each of the other liquidators, and in case of a tie vote ^one more person shall be appointed by drawing lots among six merchants, the appointments to be made within three days after any of the liquidators shall have summoned the others for the purpose; resort to courts of justice being forbidden;” and in clause 7 : that “in case of absence or sickness, or if any of the liquidators should think it advisable, he may appoint a person to act as his substitute whose appointment can not be rejected by the others without good cause, and should there be any disagreement in regard to such appointment, resort may be had to the tribunal of friendly arbitrators, and in'the absence of such appointment, whatever is done by the other liquidators should be final and binding;” that disagreements arose between the plaintiff and his co-liquidators in regard to the payment of Querol and other transactions, and defendants, taking advantage of plaintiff’s necessary trip to a neighboring town, to return shortly after, paid Q.uerol, without referring the. matter to the friendly arbitrators, and continued to perform acts of liquidation without first obtaining plaintiff’s consent; that plaintiff, on March 21 last, called upon the liquidators to comply with the terms of the contract according to an instrument drawn up by Notary Herminio Díaz Navarro, wherein they were notified that if they performed any act without the consent of Barros, they would be held liable for damages, and as they have continued to act by themselves alone, when not legally justified by plaintiff’s absence, defendants have violated the contract and are liable for damages. In support of his claim plaintiff cited articles 57 and 227 of the Code of Commerce, 2, 1101 and 1124 of the Civil Code, 790 to 796 and. 827 of Civil Procedure, the legal meaning of absence, and clause 6 of the deed of dissolution.
    
      Defendants answered the complaint praying that the same be dismissed as to that portion of it which reads: “ to compel defendants to act in accord with plaintiff in all the operations and transactions that may be effected for the liquidation, leaving without effect all that have been carried out without his intervention, including the payment made to Querol,” inasmuch as the court is not competent to render such a decision ; that the indemnity demanded by plaintiff be denied; that the complaint be sustained as to the execution of the deed requiring differences to be submitted to the decision of arbitrators, as also defendants’ counterclaim, the court being prayed to adjudge the plaintiff to pay one thousand dollars damages for taking with him the key of the safe when he went'away, without leaving any one to represent him, and that the costs be taxed against him.
    Defendants based their claims upon the following facts : The execution of the deed of dissolution of the firm and the stipulations therein contained under clauses 2, 6 and 7, quoted by the plaintitt, upon which they are agreed; adding that by deed of October 2, 1901, Emilio Rolan, as attorney-in-fact of. parties to the deed of dissolution, assigned to Troncoso Hermanos & Co., all the rights and actions appertaining to his principals in the dissolved firm, and consequently the only liquidators are the aforesaid Troncoso, Freiría, Barros and Ramiro Rodríguez ; that the plaintiff’s absence was absolute, .he having abandoned the liquidation and taken with him the key of the safe, the accompanying letters showing that said absence lasted five months from October or November of the preceding year to March last, and further that he continued in his absence with the key and abandonment of the liquidation, that by another" letter it is seen that the idea of naming friendly arbitrators originated with the defendants, and although there were no disagreements among the liquidators, all their actions taken being valid, they desired to submit Barros’ conduct to said arbitrators for which purpose the necessary steps were taken; thus, then, they do not oppose the appointment of arbitrators, but object to the proposition that everything done without Barros’ consent, including the payment made to Querol, should be rendered null and void. They deny all the facts set forth in the complaint which are contrary to their statement, estimate the damages caused by Barros to be one thousand dollars, in absenting himself and taking away the key of the safe, and cited as the law governing the matter, article 56 of the Code of Commerce, the contract of dissolution, the meaning of absence, and the couirt’s lack of jurisdiction in the premises, inasmuch as any disagreements must be decided by friendly arbitrators.
    With their answer, to the complaint defendants filed the deed of dissolution, the clauses whereof, which are essential to the point, are sustained and alleged by both parties, namely, aforesaid assignment to Troncoso Hermanos; Que-rol’s receipt for services rendered as a collector for “Sucesores de Vicente & Ca., en liquidación,” and tbe letters produced, the plaintiff acknowledging the one addressed by him from Corozal, under date of February 4 last, to “Vicente & Co., en liquidación,” replying to one dated January 31, received by him from the latter, and in which he says : “inasmuch as since the last distribution I have had no intervention in the collections or in the entries made in the books, I ask not only that the sums collected be included but also all the entries made.”
    The plaintiff being duly notified of the counterclaim, contested the same and prayed that it be dismissed with costs, on the grounds' that the firm having been put in liquidation, no funds were kept in the safe, which was sold, and the fact of Barros’ carrying away the key did not interfere with the sale nor cause any harm, alleging the principle of law that a person who fulfills his obligations is not liable for damages, especially when he has caused none.
    The introduction of evidence having been ordered, that of plaintiff consists of the act of protest entered by plaintiff, referred to in the complaint; 'the • exhibition by defendants of the books of the liquidation, for the purpose of checking the entries, which books appear to have been kept in accordance with the legal requirements, there appearing no accounts of the supposed services rendered by Querol, it being explained that these are referred to only in the letters and were rendered mostly in court proceedings; the manager of Troncoso Hermanos admits that they have had no differences with Barros on the subject of Querol’s account; that when the former made his appearance he evinced his opposition to any payment being made to Q.uerol; that Barros had been summoned for the discussion of various matters, and that he had with him the key to^ the safe; four witnesses .testified that they know Barros as a merchant, two that he has moved to Corozal, and two that they do not know whether he resides out of the city.
    The evidence presented by defendants was: the certificate of the clerk of the Municipal Court of the Cathedral District, containing a copy of the petition of the liquidators praying that Barros, a resident of Corozal, be summoned to appear within three days for the purpose of executing the document designating friendly arbitrators and settling doubtful points that had arisen in connection with the liquidation, in compliance with which petition the-court issued letters requisitorial on March 4 last; Barros’- confession, in addition to his acknowledgement of the letter referred to in the fifth finding of facts wherein he states that he was not present when the payment to Querol was made, to which he was opposed; that for the present suit, summons had been served upon him in Corozal; that he does not go to Vicente’s house where the liquidation is being carried put, because it is not necessary for him to do so, and he did not give his assent to the appointment of friendly arbitrators on account of the nature of the letter in which he was asked to do it.
    
      A day and hour having been set for the hearing, the parties maintained their respective claims. Presiding Judge Juan Morera Martinez prepared the opinion of the court.
    Acquiescence, in its legal signification, means the agreement of the defendants to the request of the plaintiff, and the parties being agreed as to the execution of the deed designating arbitrators for the settlement of disagreements arising in connection witn the liquidation, they have complied with and respected clause 6 of the deed of dissolution and have not violated the contract, which is the law by which they are to be governed in the matter.
    Submission to the decision of friendly arbitrators produces the same consequences as other obligations, and the limits and extent of the stipulations of the parties must be understood and explained according to the terms of the public instrument containing the same in the same manner as in other-obligations, without applying them to things or cases not expressly provided for therein. For this reason, and because until the public instrument for the-appointment of arbitrators has been duly • executed, and the differences and questions arising are settled by the friendly arbitrators, or the submission to arbitrators is declared void by reason of the non-execution of said document, this court cannot pass upon them.
    For the reasons stated above it was impossible to declare the incompetency of the court, as demanded by defendant, because it would be necessary to see and examine all the questions that have arisen, those that amount to disagreements as to the operations and steps taken for the liquidation, damages claimed by both parties, either as plaintiff in the complaint, or by counterclaim, as defendant, and as to whether the payment to Deogracias Querol was properly made or not, all of which questions come fully under clause 6 of the contract of dissolution.
    We adjudge that we should sustain, and do sustain, the complaint as regards the execution by plaintiff and defendants of the public document submitting for decision to friendly arbitrators all disagreements arising among the liquidators, and especially those points set up in the complaint, in the answer thereto and in the counterclaim, which are not disposed of in this decision, and as to which we find against plaintiff and defendants, and dismiss the other matters submitted by the parties, which should be referred to the friendly arbitrators for decision; without special imposition of costs.
    Thus by this our judgment we pronounce, command and sign — Juan Mo-rera Martinez, Henry F. Hord, Juan J. Perea. Publication : The foregoing judgment was read and published by the presiding judge, Juan Morera Martinez, in open court this twenty-sixth day of September, 1902, to which! certify. — Ramón Falcón.
    From this decision counsel for Emilio Barros Rodríguez took an appeal in cassation for error of law, which was allowed, the record being forwarded to this Supreme Court and the parties cited to appear. Upon the appearance of the parties the record was delivered to their respective- counsel for their examination and information pursuant to'the Act of the Legislative Assembly of this Island, establishing this Supreme Court as a court of appeals, approved March 12, 1903. A day was then set for the hearing, at which counsel for both parties failed to appear.
    
      Mr. López Landrón, for appellant.
    
      Mr. Bosch, for respondents.
   Me. Justice Heknández,

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

The findings of fact contained in the judgment appealed from are accepted.

The defendants have acquiesced in the complaint as to the portion thereof which relates to the execution, together with the plaintiff, of the public document for submitting to the decision of arbitrators such differences of opinion as may arise among them with reference to the liquidation of the firm of “Sucesores de Yicente & Co.,” and therefore judgment upon this point should- be rendered in conformity with such, acquiescence.

The liquidators of “ Sucesores de Yicente & Co.” having agreed and stipulated under clause 6 of the deed of dissolution to act by common consent in all the operations and transactions to be carried out for purposes of the liquidation, and that such differences as might arise among them should be submitted to the decision of friendly arbitrators, considering the general character of said clause, the effect thereof cannot be restricted by limiting the same to cases which the contracting parties had not provided for, and consequently it is obvious that whatever differences may arise among the liquidators of “ Sucesores de Vicente & Co.” with respect to the liquidation of said copartnership, the decision thereof should be submitted to friendly arbitrators.

The questions raised and discussed at the hearing, namely, the nullity of the operations and transactions with reference to the liquidation of “Sucesores de Vicente <& Co.”, effected without the consent of the plaintiff, the nullity of a payment to Deogracias Querol, also made without such consent, and the damages mutually claimed by both parties, are nothing more than differences arising between plaintiff and defendants in regard to the said liquidation, and should be submitted for decision to friendly arbitrators according to the stipulation contained in said clause 6 of the deed of dissolution of “Sucesores de Vicente & Co.”

In view of articles 50 and 57 of the Code of Commerce, and 1091, 1281 and 1820 of the old Civil Code which correspond to 1058, 1248 and 1721 of the new Code, we adjudge that we should condemn, and do condemn, Evaristo Freiría y Holán, Ramiro Rodríguez y Ozores and “Sucesores de Troncoso Hermanos & Co.,” as assignees of Vicente de Vicente y Vicente, Joaquín Fontán y Ozores and Severo Vicente y Vicente, to submit, together with the plaintiff Emilio Barros y Rodriguez, to the decision of friendly arbitrators, according to clause 6 of the deéd of dissolution of “Sucesores de Vicente & Go." such differences as have arisen between them with reference to the liquidation of said firm, and especially the points raised at the hearing as to the nullity of acts executed without the consent of plaintiff, the nullity of the payment made to Deogracias Querol and damages mutually claimed by both parties, which we declare to be matters that cannot be passed upon in this suit, without special imposition of costs; and as to these points we affirm the judgment appealed from with costs of the appeal against appellant. The record is ordered to be returned to the District Court of San Juan, together with the proper certificate.

Chief Justice Quiñones, and Justices Sulzbacher and MacLeary, concurred.

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