Linares v. Rosafa , 11 P.R. Fed. 117 ( 1918 )

IIamiltok, Judge,

delivered the following opinion:

The points raised will be discussed in the order in which they have come up, and first those -going to the jurisdiction of the court.

1. By the Act of Congress approved March 2, 1917, this court was given jurisdiction of all cases cognizable in the district courts of the United States between citizens of different states, domestic or foreign, where all parties on either side are citizens not domiciled in Porto Rico. Jones Act, § 41. There are no presumptions in favor of the jurisdiction of Pederal courts, and the facts upon which it rests must appear of record. Ex parte Smith, 94 U. S. 455, 24 L. ed. 165.

Plaintiff Luzunaris would seem to be a citizen of the United States not domiciled in Porto Pico, and the principal controversy is as to the Spanish citizenship of the plaintiff Lina-res. The Consulate,General of Spain at Pew York shows that in the registry of that consulate Linares is inscribed as a Spanish subject, native of Cicera, Santander, as per passport, from the Spanish consul at Havana. This certificate is questioned on the grounds that it is not itself authenticated, and that the evidence upon which it rests is the statement of another consulate.

It is not important collaterally upon what evidence the foreign consul bases his certificate. He need not recite any of the proof made before him. It must very often happen that a council in one place must rely upon the records of a consul in another place. If the foreign nation, Spain in this: instance, is satisfied with the proof of citizenshiji, — and that is not questioned, — it would seem that the domestic court trying the case should be equally satisfied. It is true that a domestic passport is not sufficient evidence of citizenship in a domestic court. Urtetiqui v. D’Arcy, 9 Pet. 692, 699, 9 L. ed. 276, 279. But this case rests upon the certificate of the Spanish consulate without regard to how that consulate obtained its information. It is true that there is nothing beyond its own seal to prove that this certificate was issued by the Spanish Consulate General at Hew York, and this court cannot know judicially foreign seals as it does those of domestic officials of the American government. This objection is well taken.

There was added, however, the certificate of the Spanish consul at Havana that said Linares is a Spanish subject, resident at Havana, and this certificate is certified by the American consul at Havana. It ’is quite true that a consul of the United States has the primary duty of authenticating commercial matters and acts in the state to which he is accredited, in the case at bar, Cuba. He cannot certify to facts outside his duties. Stein v. Bowman, 13 Pet. 209, 10 L. ed. 129; Church v. Hubbart, 2 Cranch. 187, 2 L. ed. 249. A consul’s powers .are commercial and notarial. Rev. Stat. § 1750, Comp. Stat. § 3211, 3 Fed. Stat. Anno. 2d ed. p. 49; Bouvier’s Law Dict, s. v. Consul; 45 L.R.A. 481. This does not authorize Mm to certify to the official character of a local notary. 1. Ops. Atty. Gen. 1. An American consul may be authorized to issue passports in foreign countries. Rev. Stat. § 4075, Comp. Stat. § 7623, 6 Red. Stat. Anno. 2d. ed. p. 1266. By comity it might be presumed, in the absence of proof to the contrary, that a foreign consul acting under his official seal has a similar right, the more especially as his duties are for the protection of his citizens. This would be true of the consul supervising the commercial relations of the Spaniards in Cuba. The Cuban government could not certify that Linares was a Spaniard, and it is difficult to see what better proof outside of Spain, of Spanish citizenship, could be brought than the certificate of the Spanish consul with whom the record of citizenship- is officially lodged. Considering the close relationship of consular officials it would not seem improper for him to certify to the official action of a brother consul, by international law officially discharging, like himself, commercial duties of a foreign nation at .the same port. It does not seem to be going too far, therefore, to admit a certification by an American consul to such act of the Spanish consul.

2. Jurisdiction over specific performance of contracts is one of the most characteristic heads of- equity jurisprudence. It was one of the civil law remedies devised by the pretor at Rome. The ordinary Roman procedure consisted in the reference of an issue shown in the formula to the judex for trial, but as tbe judex, like tbe English jxrror afterwards, was a layman, in tbe course of legal development there arose in -Rome, as later under tbe Edwards in England, classes of cases which bad to be determined on direct trial, cognitio, by tbe pretor himself. At Rome in time this extraordinary jurisdiction became tbe usual jurisdiction of tbe pretors and tbe judices wore dispensed with. Tbe pretor’s procedure was by interdictum, and was used for three purposes, — for restoration (interdictum restituí or ium), production (exhibitorium), or prohibition (pro-bibitorium). Sohm, Inst. Roman Law, 308. Gains describes it as ordering or prohibiting, aut jubet aliquid fieri, aut fieri prohibet. Gaius, Inst. IV. § 139. An instance of its application was in integrum restitutio.

There was a similar. development in England, but with the difference that tbe triers of fact, jurors, continued in tbe common-law courts, and tbe corrective or equity system grew up in a new and independent jurisdiction in chancery. Specific performance was not only one of tbe most characteristic, but one of tbe earliest, beads of this equity jurisdiction. Tbe court of chancery assumed its distinct form and acquired its full power under Edward III. and in tbe thirty-fifth year of that Monarch there is a case in which Lady Audley,- without even joining her husband, suos her father-in-law for specific performance of covenants in a deed of settlement. Pom. Eq. Tur. § 35n. This particular remedy proved so useful that it has become one of '•the best recognized remedies of equity, and was never taken away in favor of courts of common law despite the long reaction against the ecclesiastical chancellors after the time of Henry VIII. Finally, Lord Hardwicke and Lord Eldon made the principles of its enforcement a part of English and now of American jurisprudence.

3. The jurisdiction of this district court in specific performance has not been argued, hut is a question which should he taken up by the court ex mero motu. This is not so much under Rev. Stat. § 723, Comp. Stat. § 1244, which is as follows: “Suits in equity shall not he sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may he had at law.”

Of course this section means something, and, if declaratory, must have been enacted to emphasize the usual rule. New York Guaranty Co. v. Memphis Water Co. 107 U. S. 205, 214, 27 L. ed. 484, 487, 2 Sup. Ct. Rep. 279. The statute only means that where there is a remedy at law, — meaning municipal law, whether common law or civil law, enforceable in the jurisdiction in question, — this must prevail to the exclusion of equity.

The question suggested arises rather out of the relation of Porto Rico itself of the United States. The Organic Act adopted March 2, 1917, declares in § 57 as follows: “That the laws and ordinances of Porto Rico now in force shall continue in force and effect, except as altered, amended, or modified herein, until' altered, amended, or repealed by the legislative authority herein provided for Porto Rico or by Act of Congress of the United States; and such legislative authority shall have power, when, not inconsistent with this act, by due enactment to amend, alter, modify, or repeal any law or ordinance, civil or criminal, continued in force by this act as it may -from time to time sea fit.” [39 Stat. at 968, chap. 145, Comp. Stat. § 3803 yy, Fed. Stat. Anno. Supp. 1918, p. 630.]

In Romeu v. Todd, 206 U. S. 358, 51 L. ed. 1093, 27 Sup. Ct. Rep. 724, the provision of the local mortgage law as to recording liens was declared to be paramount to the lis pendens rule in equity. Is there any similar local law as to specific performance ?

The Spanish law- had a triple origin, — Roman, Germanic, and Moorish. Harvard Law Review, February, 1917. nevertheless the formal controlling element is Roman. The prc-torian law as to interdicts came even more directly into Spanish codes than into the English law, and from the time of the Partidas Roman law has been very influential in Spain. The very word “interdicto” has been adopted, and the division inte prohibitorio, restitutorio and exhibitorio is well known. Es-criche, Di.c. Raz., s.v. interdicto. The'procedure was directly recognized in the Spanish Law of Civil Procedure, art. 482, ■and elsewhere. Some equity principles relating to fraud, rescission, and the like are directly adopted into the Spanish Civil Code and remaih in the amended form of this work in force in Porto Rico. This was not the case with the interdict procedure, retained in its Roman form, which related primarily to keeping the public peace, and was applied to cases of restoring possession interrupted by force. The distinction between possession and title is one playing a great part in the history of law, whether of Rome, England, or Spain; but as far as the interdict procedure is concerned, the Spanish development was limited. The English remedy .of specific performance seems to have grown out of the old interdict, but has developed into something more useful, like the modern injunction. Injunction against violation is practically specific performance. Electric Lighting Co. v. Mobile & S. H. R. Co. 109 Ala. 190, 55 Am. St. Rep. 927, 19 So. 721. Oñ the other hand, in Spain there does not seem to have been the same originality in expanding Roman procedure to meet modern needs. Probably modern needs did not exist in Spain,- and so the natural conservatism of lawyers and courts did not need to be overcome. There was not, -therefore, what we call specific performance in the Spanish law except as incidental to the interdict procedure, and even this gave' way when in 1904 the American civil procedure was substituted in Porto Rico for the Spanish. There seems, therefore, to be no reason why this court cannot apply the remedy of specific performance in a proper case.

Even if the old Spanish procedure were in force, it would not be as adequate as equity. Equity was brought to Porto Rico through this court by military order 88,- June 27, 1899. Laws anil Orders Effective in Porto Rico, May 1, 1900, 2215. This is emphasized in the Organic Acts since, and cannot be regarded as affected by the readoption of the Spanish Civil Code in 1906, the more especially as' that Code provides no method of enforcement of such matters, the interdict not being preserved. The practice which has grown up in this court, as for instance on removal, of re-stating the case in equitable form when equity is involved, is sanctioned by precedent and principle, and applies fully to specific performance.

4. The contract in question is based upon a letter of June 8 by the Sucesores de Bianchi to Linares, confirming the agreement to grant plaintiffs a 10 per cent share in the business, contemplating also the organization of a corporation. This letter approves the granting of one half of tie 10 per cent to' plaintiff Iaizunaris. Can it be enforced ?

The tendency is now to restrict the remedy of specific performance. Willard v. Tayloe, 8 Wall. 557, 565, 19 L. ed. 501, 503. It is not necessary to raise objection by motion or demurrer because it is regarded as jurisdictional. Hipp v. Babin, 19 How. 271, 15 L. ed. 633; Allen v. Pullman’s Palace Car Co. 139 U. S. 658, 35 L. ed. 303, 11 Sup. Ct. Rep. 682. The present argument is that the remedy of specific performance does not apply to personal property.such as corporate stock. A contract for the purchase of chattels will not ordinarily be specifically ordered by a court of equity, because damages are adequate. Clarke v. White, 12 Pet. 178, 9 L. ed. 1046; 3 Pom. Eq. § 1402. The difference between chattels and realty is that chattels, unlike land, have not generally a value apart from their pecuniary value. But if chattels are unique, rare, or incapable of being reproduced by money damages, equity will decree' specific delivery of them and specific performance of such contracts. 3 Pom. Eq. § 1402; Pom. Spec. Perf. §§ 11 and 12; Story, Eq. Jur. vol. 2, 13th ed. § 717. A typical case is a work of art such as a painting having a specific value. Dowling v. Betjemann, 2 Johns. & H. 554, 70 Eng. Reprint, 1178, 8 Jur. N. S. 538, 6 L. T. N. S. 512, 10 Week. Rep. 574; Pom. Spec. Perf. 17, note 2.

The test as to stock seems to be whether the securities are ordinarily purchasable in the market; contract as' to government stocks and the like will not be enforced since they can always be bought. Pom. Eq. Jur. § 1402, note 2. Where stock is not easily purchased in the market, a contract may be specifically enforced. Johnson v. Brooks, 93 N. Y. 337. There is no evi-deuce that this stock was sold in the stock market; the inference is that the corporation was a private enterprise and its stock not for sale.

The claim is not for corporate stock per se, although the remedy lies for the issue of new stock where stock has been erroneously withheld or issued to another. Pom. Eq. Jur. § 1412. In the case at bar a.large part of the property contracted for consisted of land, and it may be added that the court judicially knows it is impossible to carry on the business of a sugar central without interest of one kind or another in land, not only the site of the factory, but land or land contracts for securing the cane necessary to be ground. Moreover, this was during the prevalence of the Great War and sugar was at a premium. It might seriously be questioned whether the possible profits could readily be estimated in money, particularly at the time in question. A fair construction of the bill is that it seeks to enforce a contract for 10 per cent in Goloso as a going concern, embracing realty, business, and stock, or whatever other shape it might assume.

5. Specific performance is not only an equitable remedy, but it has peculiar features of its own. The contract to be enforced must be fair and for a valuable consideration, for a certain thing, and not relate merely' to personal property, and the plaintiff must have performed his part or be ready to perform his part if anything is incumbent upon him. Derrick v. Monette, 73 Ala. 75; Gentry v. Rogers, 40 Ala. 442; Pom. Eq. Jur. § 1405. It is a substitute for damages where damages lie but are inadequate. Comer v. Bankhead, 70 Ala. 493. It does not follow that because rescission has been refused specific performance will be granted. There is a wide field between the tvo remedies open for judicial discretion. The consideration must also have been paid and so much of the contract have been already performed that its rescission would be a fraud which could not be fully compensated by damages at law. Purcell v. Miner (Purcell v. Coleman) 4 Wall. 513, 18 L. ed. 435. Specific performance will not be decreed unless it is clearly shown that the contract is completed, that its terms are fair, and so definite and certain that they cannot be reasonably misunderstood. Kane v. Luckman, 131 Fed. 609, 612. Prom the time of Lord Hardwicke it has been the established rule that a court of chancery will not decree specific performance unless the agreement is certain, fair, and just in all its parts. He declared this the most useful head of chancery jurisdiction. Walker, Am. Law, 700.

6. Sjoecific performance is not only one of the principal heads of equity jurisprudence, but the procedure to enforce it has some features peculiar to this remedy. It will not be decreed if it is doubtful whether an agreement has been concluded or is still in negotiation, nor unless the proof is clear and satisfactory, both as to the existence of the agreement and as to its terms. Dalzell v. Dueber Watch Case Mfg. Co. 149 U. S. 315, 37 L. ed. 749, 13 Sup. Ct. Rep. 886. As to the proceedings, great accuracy of averment and also of proof is required. Clark v. Snodgrass, 66 Ala. 233; Lewis v. Lee County, 66 Ala. 482. It has been said that the jurisdiction is discretionary, but this should rather be expressed as requiring the case to be clearly proved. If the proper case arise, it is as much a matter of course for a court of equity to decree specific performance as for a court of láw to award a judgment for damages. Pom. Eq. Jur. § 1404,-It is true, however, that the principle is governed by the cir■cumstances of each, particular case. McBryde v. Sayre, 86 Ala. 458, 3 L.R.A. 861, 5 So. 791. The rule as to accuracy of proof is probably not different from that required in other equitable remedies. From the origin and nature of equity the court has endeavored to sift the conscience of the defendant. Discovery has been ingrafted upon law by legislation, but discovery was originally the fundamental remedy in equity procedure. Moreover, no bill could be enforced except upon the testimony of two witnesses, or, as afterwards modified, one witness with corroborating circumstances. Adams, Eq. 21, and notes. Equity did not otherwise, however, develop a separate system of evidence from common law, and acts upon the ordinary rules of evidence. If specific performance requires clearer proof than other cases in equity, it is not because of its relative importance, but because the contract to be enforced must generally be got at from circumstances, and circumstantial evidence to be convincing must be clearer than direct evidence. In the case at bar the contract was in writing and hence is not subject to doubt, unless as to what is the full meaning of the words employed. So far as the nature of the case at bar is concerned, thére is no doubt as to the applicability of the remedy.

7. A good many objections were made to the admissibility of depositions on the ground that they were not properly certified by the notary taking them. It is almost impossible to pass properly upon this point. The depositions were taken in Spanish under stipulation of counsel, with the understanding that they should be translated after they reached court, on account of lack of time for that purpose when they were taken. After being filed generally, they were, by consent of the parties, taken apart in open court and delivered to the official interpreter for translation. They should Rave.been officially refastened together in the same -Order and form in which they were filed, but this was not done. By ocular examination the court is satisfied that the depositions objected to were those so filed and so taken apart by consent. It seems best, therefore, to overrule the objections based upon this point, and to consider only those which relate to particular statements in the respective depositions.

As to these, however, it is not perceived on re-examination that any material error was made as to evidence admitted or rejected. It is difficult to be sure of each separate question or answer, but all that seemed to bear on the issues of the case was admitted, and neither party has been injured. Either through the letters and papers themselves, or references made to the transactions by the parties who are witnesses, sufficient can be made out to understand what occurred and justify the conclusions now reached.

8. There seems, to be no reasonable doubt as to the execution of the contract at bar and as to the fact that for six days the letter of plaintiff Linares was in the hands of the Royal Bank of Ganada, as well as that plaintiff Luzunaris did a good deal of work for the defendants in New York and in securing the passage of Juan Bianchi to Spain, It seems also, to be shown that there was a consideration of $6,000 agreed upon between Bianchi and Luzunaris for his services, and no complaint is made of its nonpayment. It must be assumed, therefore, that this particular matter is not at issue. What is at issue is as to whether the guaranty of Linares,' in which Luzunaris was to share, became an executed contract.

The evidence is conflicting and far from satisfactory. That of- the plaintiffs themselves is indefinite, and it cannot be said that the defense made by the ■ defendants, that plaintiff acted fraudulently, misrepresenting the necessity for the guaranty by Linares, is made out. Bor is it clear that the subsequent transaction by 'which the defendants bought the Central Coloso did not grow out of the original deal. The defense was not satisfactory on these points.

On the other hand the plaintiffs’ evidence is that the guaranty ¥ of Linares, which was the consideration for the alleged cession, was acted upon by the Boyal Bank of Canada, and such action is a prerequisite of the plaintiff’s case. The Boyal Bank of Canada was the institution which furnished the money that bought the property, and the 10 per cent claim of the plaintiffs is based upon Linares’s guaranty being the consideration upon which the Boyal Bank of Canada made the advance. But the two managers of the bank say that the guaranty of Linares was not relied on. McKenzie knows nothing at all about Linares facilitating the transaction,- Bruce, the active manager in this transaction, knew Linares, but distinctly states that Linares’s guaranty was not considered by the hank at all. Linares had requested the bank to leave him out as soon as possible, and the conviction is forced upon the mind by the testimony of the hank officials active in the matter that .they left him out from the beginning. The contention of plaintiffs is that the recollection of these officials is at fault and that their testimony is a mistake, but the court cannot adopt this view. If the hank acted' on the guaranty, plaintiffs’ case is made out, and the best, if not only good, evidence on this point must he that of the bank, and the bank says the guaranty was not considered. Plaintiffs cannot know more on this crucial point than the bank itself. The bank’s officials could hardly recollect all tlie rest of the transaction and forget this, and moreover the contemporary messages to the head office in Montreal, which was really the hanlc, contain no reference to Linares.' It is indeed, shown that in June defendants understood the assistance of Linares was needed, and agreed to convey to him one-tenth interest in the purchase, and it is not shown that this agreement was obtained by fraud. But. it is also satisfactorily shown that the assistance of Linares was not used, and that the proposed purchase was not effected. It is -quite true that the defendants purchased Coloso and that the bank aided them, hut it was in October, and Linares’s guaranty had nothing to do with the transaction. The present srrit is not a case of quantum meruit, but one for enforcement of a specific contract. The plaintiffs have not only not clearly proved their claim, but the preponderance of the evidence does not favor . them.

It follows that the plaintiffs cannot be said to have made out their claim for the specific performance of the contract in controversy to the certainty which is required in equity, and relief must be denied.

The bill will be dismissed.

It is so ordered.