Cámara Insular de Comerciantes Mayoristas v. Anadón
Cámara Insular de Comerciantes Mayoristas v. Anadón
Opinion of the Court
delivered the opinion of the Court.
This appeal was filed by Marcelino Anadón Royo against the judgment rendered by the Superior Court, Ponce Part, which ordered him to pay to the Cámara Insular de Comer-ciantes Mayoristas $25,629.83 as principal plus legal interest up to July 11,1955 and $500 for attorney’s fees. It is unnecessary to elaborate on all the facts related to this suit and we shall limit ourselves to state those facts which are necessary in order to dispose adequately of the errors assigned.
The original complaint was filed by the Cámara Insular de Mayoristas as “assignee” of thirty-four commercial entities established in the Island, against a mercantile partnership called M. Anadón, S. en C., appellant Marcelino Anadón Royo and his son, Miguel Anadón Pontón.
Appellant assigns the commission of three errors, to wit: (1) the trial court lacked jurisdiction; (2) absence of evi
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The allegation of lack of jurisdiction is based on the fact that the “assignors” creditors had voluntarily claimed their respective credits within the bankruptcy proceedings of partnership M. Anadón S. en C., prior to the filing of this action, the District Court of the United States thus being the one with exclusive jurisdiction over the matter.
The evidence shows that the mercantile partnership M. Anadón, Son, S. en C. resorted to a voluntary bankruptcy proceeding before the United States District Court for the District of Puerto Rico; that all commercial firms which assigned their credits to the Cámara Insular de Mayoristas presented proof of claims during said proceeding; that on the date the action commenced, July 11, 1955, the aforesaid claims were pending and some of them had been admitted, although afterward —on June 29, 1956— their withdrawal was requested and granted.
The liability of a codebtor, surety, or guarantor in any way for a bankrupt is not affected by its adjudication in bankruptcy. 11 U.S.C.A. ■§ 34; Fetter v. United States, 269 F.2d 467 (C.A. 6, 1959); United States v. Miller, 162 F. Supp. 726 (La. 1958); Johnston v. Missouri Pac. R. Co., 160 S.W. 2d 39 (Ark. 1942); Bass v. Geiger, 73 So. 796 (Fla. 1917); Kirkholder & Rausch Co. v. Bridgland, 199 N.Y.S. 113 (1923); A. Klipstein & Co. v. Allen-Miles Co., 136 Fed. 385 (C.C.A. 1, 1905). The purpose of the section cited is to protect the right of any action that a creditor may have against any other person jointly liable with the bankrupt debtor. First Nat. Bank of Hamilton v. Hoffman et al., 171 Pac. 13 (Kan. 1918); Hollands. Cunliff, 69 S.W. 737 (Mo. 1902). In other words the initiation of a bankruptcy proceeding is a
From the foregoing it may be inferred that the voluntary bankruptcy proceeding on which appellant seeks-to rely does not preclude the creditors from filing an action against him, since he was not petitioner therein notwithstanding his condition as member of the bankrupt partnership. Nor is the creditors’ complaint impaired by the fact that since they were included in the creditors’ schedule, they appeared in court during the proceeding and filed their claims. As a matter of fact, their subsequent request to be eliminated from among the persons with a right to participate in the distribution in the bankruptcy, was unnecessary because, in any event, the only thing to which appellant would have been entitled was to have his liability limited to the same amount that the creditors might have received. Section 1097 of the Civil Code (31 L.P.R.A. § 3108) specifically authorizes the creditor to sue all or any of the joint debtors and states that “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.” Stubbe Bros., Inc. v. Díaz, 43 P.R.R. 75 (1932); Cintrón & Aboy v. Solá, 22 P.R.R. 245 (1915), affirmed in 237 Fed. 61 (1916).
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Camara Insular de Mayoristas was organized in 1932 for an indefinite term as a nonprofit partnership under the provisions of Act No. 22 of March 9, 1911 (Sess. Laws, p. 74, 6 L.P.R.A. §§ 1-19). In its incorporation clauses it was stated that the purpose of the partnership was “to promote a greater union and cooperation among wholesalers and related dealers in order that they may help themselves mutually in all-that tends to the greater development, progress, and welfare of their commercial interests, especially in that relating to
According to the explanation given by the partnership’s administrator, the assignments of claims of the members are usually verified when a retail merchant is not able to pay the debts owed to the wholesalers. The Cámara becomes assignee of the amount due, undertakes collection thereof, and if successful, receives twelve per cent of the amount recovered. No price whatsoever is provided for the acquisition of credits, it is made orally or in writing,
From the foregoing it is clearly evident that the plaintiff partnership had express authority to “acquire” the members’ credits. We do not believe this is contrary to law and public order. The least that can be averred under the facts of this case is that plaintiff acted as agent for its members, and obviously as we shall see, the defendant appellant could not present any objection in the absence of a showing that it was thereby prejudiced —protection against a double payment— something which was not proved.
Now, then, in a stipulation dated September 17, 1956, the appellant limited the controversy to the effects of the clause copied in the preceding footnote 2 as to its personal liability for the partnership’s debts. During the trial his only objection to said stipulation consisted in the denial of the second fact relating to the liquidation of the debts, but the trial court held that he actually had accepted said fact at the preliminary hearing. Thus, no condition was made in the stipulation on the question now raised as to plaintiff’s status.
Appellant alleges that in view of the fact that the members’ accounts were involved in the bankruptcy proceeding of the M. Anadón, S. en C. partnership, the “assignment”
On the other hand, Anadón Royo is not in a position to challenge the assignment made because it has not caused him any prejudice. As we stated in Matheu v. Colón, 49 P.R.R. 365, 374 (1936) referring to the assignment of a contract of conditional sale and its challenge by the debtor: “His rights and obligations under the said contract remained unaffected. The only alteration consists in a change of creditor. The assignment did not create any new obligation for said debtor. The fact that he now is indebted to Matheu instead of to the original seller does not mean that a new obligation exists. On the contrary, his debt owing to Matheu has its origin exclusively in the contract of conditional sale.” Since Morales v. Blanco, 15 P.R.R. 222 (1909), we had stated that the consent of the debtor is not required to transfer or assign credits, it being sufficient that the debtor have knowledge of the transfer in order that he be obligated to the creditor. Section 265 of the Code of Commerce (10 L.P.R.A. § 1741); Espinet v. Alvarez, 25 P.R.R. 329 (1917); M. Rodríguez & Co. v. Sons of Mari, 35 P.R.R. 512 (1926).
Nor are we now dealing with the assignment of a credit in controversy since upon making the assignment, not only had no answer been filed to any complaint but no complaint
The errors assigned not having been committed, the judgment rendered by the Superior Court, Ponce Part, on December 11, 1956, will be affirmed.
Defendant Miguel Anadón Pontón filed an answer substantially denying the essential facts of the complaint. Afterward, he agreed to a stipulation admitting practically all of the facts alleged, including those concerning the existence, certainty, and enforceability of the debts claimed. Finally, the plaintiff voluntarily desisted, with prejudice, from his claim against this defendant.
During the trial the efforts of appellant’s attorney were mainly aimed at suggesting an interpretation of the clause of the deed of dissolution which we copy below and which released him from the results of the liquidation. Despite his persistence, he did not succeed because the trial court held that he had assumed payment of the firm debts. This finding is not challenged. The aforesaid clause reads as follows:
“Second: Marcelino Anadón expressly releases Miguel Anadón Pontón from all liability, debt, compromise, and obligation no matter their nature which the firm ‘M. ANADON, S. EN C.’ might have incurred until November nine, nineteen hundred and fifty-three, assuming personal responsibility for the same in the way and manner established hereinafter.”
Registration of the partnership in the Mercantile Registry does not create a juridical person but merely establishes the necessity of its recognition by a third person. Instruments not recorded shall be binding among the members, but they shall not prejudice third persons, who, however may make use thereof in so far as advantageous. Sections 11, 12, and 17 of the Code of Commerce (10 L.P.R.A. H 1031, 1032, and 1038); Quintana Brothers & Co. v. S. Ramírez & Co. et al., 22 P.R.R. 707 (1915). Hence in the present case, plaintiff may avail itself of the assumption of responsibility contained in the deed of dissolution which, for all practical purposes made appellant a joint debtor of the afore-mentioned partnership.
Oral evidence is sufficient to show the assignment of the mercantile credits. M. Rodríguez & Co. v. Sons of Mari, 35 P.R.R. 512 (1926).
Appellant’s attorney unequivocably stated that “the judge committed error in finally holding that this party has never denied the representative capacity of the plaintiff nor ever denied the corporate character of the plaintiff.” (Tr. Ev. 49). Later he explained that “the question raised does not involve the status of the plaintiff, (rather) the legitimacy of the assignment business . . .” (Tr. Ev. 53); and that “ ... we already accepted the status.. .what we do not accept is that as Cámara de Mayoris-tas, under the terms of its franchise, the plaintiff may transact the business of assignment by virtue of which it becomes plaintiff in this case.” (Tr. Ev. 54.) (Italics ours.)
Certainly, if it is sought to challenge plaintiff’s capacity, said defense may not be raised at this stage of the proceedings. Rule 9 (a) of Civil Procedure of 1943, corresponding to Rule 7.1 of 1958; Jones v. Schellenberger, 196 F.2d 852, 854 (C.A. 7, 1952); 2 Moore, Federal Practice 1905, $ 9.02.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.