This is an appeal from a judgment of the Supreme Court of Puerto Rico of April 6, 1934, reversing a judgment of the District Court of San Juan of January 12, 1931, and dismissing the complaint.
The complaint was filed in the District Court, of San Juan December 12, 1929. It.was brought by Jose Roman Alonso and Manuel Alonso Monoz, sole members of Alonso Hermanos, a civil agricultural partnership, against Jose Matos, in which it was alleged that on March 1, 1929, the plaintiffs entered into a contract in which the defendant was to sell 122 head of cattle, of different genders, to the plaintiffs for the lump sum of $18,000; that the plaintiffs took possession of the cattle, agreeing to pay therefor as follows: $3,-000 in cash on the date of the contract; $5,000 by the transfer of an urban piece of property; and the balance of $10,000 to bé paid within two years, expiring March 1, 1931, with interest at 9 per cent, per annum, payable monthly, and to secure the $10,000 by a mortgage of property owned by Jose and Manuel. That on the date of the sale the cattle were apparently in good condition; that no notice to the contrary was given by the defendant to the plaintiffs, who had no knowledge of or experience in veterinary matters and were unable to discover at sight whether the cattle were suffering from any hidden disease; that long prior to March i, T929, the cattle thus sold were suffering from tuberculosis, a contagious disease;. and that from March 18 to December 6, 1929, 43'of the cattle died of the disease (specifying the date of the death of each one and its color or marks); that, after a tuberculine test was made of the cattle, it was found that 29 more were affected with tuberculosis, contracted prior to the sale; and that the plaintiffs stand ready and willing to return to the defendant (and offer so to do) all the surviving cattle.
The prayer was that the court enter judgment declaring null and void, in accordance with section 1397 of the Revised Civil Code, the contract for the sale of the cattle of March 1, 1929, and the mortgage securing the balance of $10,000; that the entries of the mortgage deed in the Registry of Property of San Juan be canceled; that the plaintiffs recover of the defendant tlie sum of $8,000 paid for the cattle; and that the defendant pay costs and disbursements, etc.
In his answer the defendant admitted the making of the contract; that the plaintiff paid the first installment of $3,000 in cash and the second installment of $5,000 with the urban property transferred to him; and admitted that the plaintiffs agreed to pay the remaining $10,000 within two years with interest, which obligation was secured by the mortgage as alleged; but denied each and every other allegation of the complaint. He alleged as new matter that the cattle, on the date of the sale, were without vice or disease, occult or apparent, and were sold by him acting in good faith; that subsequent to the sale some of the cattle became af-. fected with tuberculosis due to the fault of the plaintiffs in not properly feeding and housing them; and, as a special defense, among others, alleged that, if the plaintiffs had a cause of action, it had prescribed, inasmuch as it was brought after the expiration of forty days from.the delivery of the cattle, under section 1399 of the Revised Civil Code.
In the District Court it was found that the cattle were to be used for dairy purposes; that 43 died and 29 were killed by the sanitary authorities due to their having tuberculosis; that the cattle died of a contagious disease; that those that were killed were first treated with the tuberculine test and the result was positive reaction; that the place to which the cattle were taken was.in fair hygienic condition *935and had sufficient water; that the autopsy practiced on some of the cows showed that a chronic cavernous condition existed which indicated that the cattle had been sick for a number of months; and that, at the time of the sale, part of the cattle was suffering from a contagious disease.
The District Court was of the opinion that, inasmuch as some of the cows were suffering from a contagious disease at the time of the sale, the object of the contract as a whole was wanting and the .contract was null and in existent; that the action set out in the complaint was not a redhibitory one; that it had not prescribed under section 1399 of the Civil Code; that that section was not absolutely mandatory; that, being of the opinion that the contract “never had any existence because it lacked one of the essential elements for its validity, the term to allege its nullity * * * [was] not limited by any period of prescription”; and that the injured party was only required to claim the in-existence of the contract with reasonable diligence.
In the Supreme Court of Puerto Rico that court, after reviewing the evidence, reached the conclusion that the District Court “had a right to find that a great number of cows sold were affected by tuberculosis at the time of the sale”; that “the preponderance of the evidence satisfies us that the disease was not contracted after the sale, at least with respect' to a number of the cows”; that the disease “existing, as it did in some cases in an advanced form the court had the right to decide the facts as it did.”
It said that the plaintiffs’ contention was that the action was based exclusively upon the idea that the sale was completely null and void and inexistent because a great part of the cattle was affected by tuberculosis at the time of the sale, and came within the provisions of section 1397 of the Civil Code, which reads:
“Sec. 1397. Animals and cattle suffering from contagious diseases shall not be the object of a contract of sale. Any contract made with regard to the same shall be void.
“A contract of sale of cattle and animals shall also be void, when the use or service for which they are acquired being stated, they are found to be useless therefor.”
After stating that tuberculosis was a contagious disease within the meaning of section 1397, the court in considering that, section stated that its provisions were the same as those of section 1494 of the Spanish Civil Code of 1889; that the Spanish Code of 1889 was extended that year to Puerto Rico and was adopted in 1902 as its Civil Code; that the history of legislation in regard to vices of a thing sold for which a vendor gave a warranty shows that the vices in animals giving rise to a-cause of action were characterized as redhibitory; that this was true from the time of the Ediles at Rome; that the “Latin, word redhibiiio means a return of the thing sold, or sometimes of part of the thing sold, with a right to obtain all or a part of the price paid”; that “a vice in an animal causing the annulment or rescission of a sale has always been considered as redhibitory, at least up to the enactment of the Civil Code of Spain of 1889,” in which year sections 1397 and 1399 were added; that the plaintiffs’ learned counsel “realized that in order to have a possibility of success in their suit they were bound to return or offer to return the animals, the subject of the contract, whether diseased or not ” and for this reason offered to return the cows that remained in their possession; that the action stated in the complaint was necessarily a redhibitory action, “whatever else it may be characteriz-’ ed or whatever else may be the effect of section 1397”; also, that the “action is a redhibitory one, whether the thing attempted to be sold can or cannot be the subject of a contract by reason of section 1397”; that the court had come to the same conclusion with Scaevola that “Homer slept” when the Legislature of Spain enacted section 1494 of the Spanish Code of 1889 (which is the same as section 1397 of the Civil Code of Puerto Rico); that the word “void” means “voidable? and the action is redhibitory; that in section 1397 (Spanish 1494) the Legislature “necessarily * * * meant to say that a contract could be rescinded or annulled as in other redhibitory actions, and that section 1397 does not exclude the transaction made in this case from the field of imrranty.” In other words, that there was an existing contract of sale -to which the warranty could attach and having reached the conclusion, that the allegations of the plaintiffs’ complaint disclosed that it was a redhibitory action because the facts found (that 72 of the cattle included in the contract had a contagious disease and the remaining SO were sound) *936necessarily rendered it redhibitory, that there was an existing contract of sale because the 50 sound cows would constitute the object of a contract, and that a rescission of it was necessary and required a return of the 50 sound cows to the vendor, the court proceeded to consider what it deemed the principal question in the case —whether the provision of 40 days within which to bring the action provided for in section 1399 of the Civil Code of Puerto Rico and article 1496 of the Civil Code of Spain applied, and held that it did. And, it appearing that the plaintiffs’ action was not brought until December 12, 1929, some ten months after the making of the contract and the delivery of the cattle, it ordered the action dismissed.
After a careful consideration of the matter, I am of the opinion that, as applied to the allegations of the complaint and the specific facts found in this case, the court did not err either in holding that the action was redhibitory or that the right to prosecute it was barred.
But I think there are statements in the opinion, not necessary to the decision in the case, that go too far, for the provisions of section 1397 of the Civil Code of Puerto Rico (article 1494 of the Spanish Code) are not necessarily restricted to a redhibitory action, even though that section is included among other sections of the Code, the preface of which is “Warranty against hidden defects of or burdens of the thing sold.”
The Civil Code of Puerto Rico in sections 1228 and 1238 (Revised Statutes and Codes of Puerto .Rico 1913, §§ 4334, 4344), which-correspond to articles 1261 and 1271 of the Spanish Civil Code, provide:
“Sec. 1228. There is no contract unless the following requisites exist:
“1. The consent of the contracting parties.
“2. A definite object which may be the subject of the contract.
“3. The cause for the obligation which may be established.”
“Sec. 1238. — All - things, even future ones, which are not out of the commerce of man, may be objects of contracts.”
Section 1397 of the Civil Code, as we have seen, provides that “animals and cattle suffering from contagious diseases shall not be the object of a contract of sale.”
Section 351 of the Penal Code makes the sale, use, or exposure of an animal having a contagious disease, if knowingly done, a crime; and section 352 of that Code provides that every animal having such a disease “shall at once be deprived of life by the owner or person having charge thereof, upon discovery or knowledge of its condition; and any such owner or person omitting or refusing to comply with the provisions of this section shall be guilty of a misdemeanor.” Similar provisions are found in sections 118, 121, and 122 of the Revised Statutes and Codes of Puerto Rico 1913 (sections 4, 7, and 8 of the Act of March 4, 1907).
There can be no doubt, therefore, that cattle having a contagious disease are in Puerto Rico out of the commerce of man and cannot be made the object of a contract of sale; that, where a single animal having a contagious disease, or where several animals all having a contagious disease, are attempted to be sold, no contract of sale arises or can exist, for in neither case is there a lawful object of a contract and the attempted contract, under the provisions of section 1228, is nonexistent. Being nonexistent, there is nothing to rescind, and, no property being in the vendee’s possession that can lawfully be returned, there is nothing to return; there being no contract of sale there is nothing out of which a warranty, express or statutory, can arise or to which it can attach, and an action to recover the price, paid would not be redhibitory and the prescription periods of 40 days or of 6 months would not apply. Furthermore, under the law of Puerto Rico, when a contract lacks any one of the essentials prescribed in section 1228, so that no contract exists, no declaration of nullity is necessary before an action may be brought to recover the price.
In Valiente & Co. v. Succession of Abdon Fuentes Marrero, 76 F.(2d) 78, 83, this court said:
“It may be said, as heretofore pointed out, that under section 1228 of the Civil Code of Puerto Rico no contract exists where consent of the contracting parties is wanting [or where the object of a contract ■ is wanting] ; that such • a contract is nonexistent and void, and a decree of nullity under section 1268 is not required, for the reason that that section, when read in connection with section 1267, is called into play only in the case of contracts containing the requisites mentioned in section 1228. Gonzalez et al. v. Fumero et al., 38 Puerto Rico, 497, and cases there cited.”
*937And the Supreme Court of Puerto Rico, in the above-cited case of Gonzalez v. Fumero, in construing section 1228 of their Civil Code, said:
“The phrase ‘there is no contract’ excludes from that juridical qualification everything outside of the concurrence of the three requisites. If one of them is missing the contract is not born and does not become real.”
It appears from what has been said that cases may arise where the facts are such that the express language of section 1397 will be applicable and am action will lie for the price paid without a redhibitory action or a prior suit for a declaration of nullity.
On the facts in this case, there being an existing contract to which a warranty attached, the plaintiffs had their election (Civil Code, § 1389 [Revised Statutes and Codes of Puerto Rico 1913, § 4495]) to sue on the warranty and recover the damages they sustained by its breach, or .to return the sound cattle and recover the price paid.' If they sued on the warranty, they had to bring their action within six months from the day of the delivery of the cattle (Civil Code, § 1393 [Revised Statutes and Codes of Puerto Rico 1913, § 4499]). If they sought to rescind the contract, they had to bring their action within forty days (Civil Code, § 1399 [Revised Statutes and Codes of Puerto Rico 1913, § 4505]). See Record, p. 40. The plaintiffs did not bring their action for more than ten months after the delivery ■of the cattle.
My associates apparently think that, although there was an existing contract of sale to which a warranty attached and on which warranty an action must be brought, if at all, within six months after delivery of the things sold, the plaintiffs nevertheless have six years within which to sue for money had and received, as if there were 122 distinct contracts of sale in each of which there was a fixed sum agreed upon and paid for each of the cows, diseased or sound, and that an action for money had and received can be maintained for the price of the diseased ones, although there was no distinct price agreed upon for each cow. It is perfectly apparent that an action for money had and received would not lie under the circumstances here disclosed and that it should not be held to lie in this case, for it would be substituting an action for money had and received for an action for damages, which the warranty provided for, and extending the period within which suit might be brought from six months to six years.
In any event, it certainly cannot be said that, as applied to the plaintiffs’ declaration and the particular facts of this case, the Supreme Court of Puerto Rico was clearly wrong in holding that the plaintiffs’ action was redhibitory and, under the provisions of the Code, should have been brought within forty days after the delivery of the cattle. Diaz v. Gonzalez, 261 U.S. 102, 43 S.Ct. 286, 67. L.Ed. 550.