Dissenting Opinion of
Mr. Justice Sulzbacher.The facts in this case are set out fully in the decision of the majority of the court, and therefore for the purposes of this dissenting opinion it is only necessary to make the following statement: The defendant and appellant Eduardo Wellenkamp y Chelva, attorney in fact of Don Juan Se-rrallés y Colón, in consideration of certain real estate sold and conveyed to the latter by Nicolás Cartagena y Man-*83gual, did, in the month of October, 1894, in the town of Ponce, make and execute before a notary public and in due form of law a certain document of indebtedness to said Ni-colás Cartagena, wherein exists the following clause :
“Said sale is made for the sum of eighteen thousand pesos, commercial money, which shall be paid by the purchaser, Don Juan Serrallés y Colón, who is obligated thereto by Don Eduardo Wellenkamp y Chelva, who appears before him (the notary), and to be received by Don José Nicolás Cartagena, who is also present, in the following instalments: two thousand pesos on the 15th day of July 1898; two thousand pesos more on the same day and month of 1899; an equal amount of two thousand pesos on the 15th day of July of the year 1900 ; and three thousand pesos on every 15th day of July of the years 1901 to 1904, both inclusive; all in current money of commerce, whatever the coinage of money may be, and of such character as may be circulating or be accepted in this Province, at the rate of one hundred cents of the circulating money on every peso, and to the exclusion of all kinds of paper money established, or which may be established, although its circulation may be legal tender.”
The District Court of Ponce held, that under the provisions of said contract, the defendant, the appellant in this Court, is required now to pay American dollars instead of “pesos”, which were the Spanish silver coin, not only in payment of the amounts due at the time of the filing of the suit, but also in payment of all the amounts thereafter to become due under said contract. From this decision the defendant appeals to this Court.
The majority of the court holds that the defendant’s appeal is not well taken; that the writing of his appeal is insufficient and does not set out with clearness and precision the errors of the trial court. The decision is to the effect that the appeal be dismissed. But nevertheless the court proceeds to give its construction to the contract, accepting the same as was expressed by the District Court of Ponce. Neither in this disposition of the case nor in the construction of the contract am I able to concur.
It is contended that the Supreme Court of Porto Rico is a “court of cassation,” and for that reason the Spanish law *85of procedure and the decisions of the Supreme Court of Spain should be the rule of decision for this court. Even were this the case it seems that the defendant’s writing of appeal or of cassation is ample to conform to that system of procedure, according to articles 1690 and 1719 (1) referred to in the majority opinion, and which articles read as follows:
“Art. 1719 (1). — The paragraph of article 1690 upon which the appeal is based shall be stated in the petition, and the law or legal doctrine alleged to have been violated shall be precisely and clearly cited, as well as the manner in which the violation occurred.
If there should be two or more bases or reasons for appeal, they shall be stated in separate and numbered paragraphs.”
“Art. 1690. — An appeal for annulment of judgment by reason of violation of law or of legal doctrine shall lie:
1. — When the decision contains a violation, erroneous interpretation, or wrongful application of law or of legal doctrine applicable to the case at issue.
2. — -When the judgment is not pertinent to the allegations made by the litigants at the proper time.
3. — When the judgment grants more than is prayed for, .or does not contain any declaration upon some of the allegations made in the action at the proper time.
4. — When the decision contains contradictory rulings.
5. — When the decision disallows a plea of res judicata, provided that this exception has been pleaded in the action.
6. — -When, by reason of the matter at issue, there has been abuse, excess or defect in the exercise of the jurisdiction, whether taking cognizance of a matter which does not come within the jurisdiction of the court or judge, or in not taking cognizance thereof when it is his duty to do so.
7. — If in the consideration of evidence an error of law or of fact should have been committed, provided that the latter error is apparent from documents or authentic acts which show the evident error of the judge.”
Although some of appellant’s objections stated in his writing of appeal could perhaps have been made more specific, yet, taking them all together, they are sufficient to place the whole case and the document in controversy before this court for consideration and decision.
*87I am, however, of the opinion that the Supreme Court of Porto Rico is not a court of cassation, but a court of appeals, apd as such has the right to.consider the whole case and the merits of the controversy without regard to the technicalities in the manner of its presentation. I arrive at this conclusion by considering the history of the laws now in force here and the origin of this court.
After the occupation by the government of the United States of the Island of Porto Rico, and whilst it was under military administration, a number of regulations called “General Orders” affecting the judicial system, and legislative in character, were adopted and promulgated and became part of the laws of Porto Rico. General Order No. 118 promulgated by Brigadier General George W. Davis, August 16, 1899, is the one which is to be considered in connection with this case. By this General Order the Courts of the island were created, namely, a Supreme Court, District Courts and Municipal Courts. Sections' 2 of said. General Order reads as follows:
“There shall be a Supreme Court of Justice with fixed residence in the city of San Juan, composed of a Chief Justice and four Associate Justices, who jointly will constitute the Supreme Bench for all civil and criminal business.” * * *
The .following sections of said General Order govern appeals from the District Courts to the Supreme Court:
“ 15. — .The criminal business transferred from the abolished courts shall be proceeded with by the district courts. Matters "of civil ligitation shall also follow their course up to the step in procedure known as presentation of proofs when they shall be continued under the rules of civil oral suits estab-lisod by this General Order. If said business shall have got so far as presentation of proofs, without concluding same, the the remainder shall be heard in oral suit but if the suit be found in a stage of proceedings subsequent to the presentation of proofs it shall be finished and decided by the district courts in conformity with existing proceedings, after public hearing, it being understood that recourse of cassation against the decision shall only be allowed within the dispositions of this general order.”
*89“ 45. — In all cases provided for by the law of criminal procedure appeal in casation will lie against sentences pronounced by the district courts for infraction of law or error in procedure.”
“78.- — -Appeal to the Supreme Court will lie in all civil suits for infraction of law and error in procedure in the eases which the law of civil procedure defines for the latter, but not for suits heard before municipal courts.”
“ 80. — In criminal trials appeal may be taken for infraction of law and error in procedure in cases defined by the law of criminal procedure.”
•‘81. — Notice of appeal shall be giving to the sentencing court not later than ten days after the day of notification of sentence.”
“ 82. — The District Court shall decide whether to allow the appeal only when such is to be taken for error in procedure, and its decision adverse may be appealed against before the Court within fifteen days. For this purpose the district court when denying right of appeal shall grant a literal and certified copy of the ruling against which appeal was sought to the party appealing within three days at the latest, and besides shall order both sides to appear before the Supreme Court.”
“88. — On the termination of the time allowed for appearance and on the appearance of the apellant, the Supreme Court after public hearing shall immediately give a decision on the appeal against the ruling of the lower court debarring right of cassation. The lawyers for both sides may be present, and the matter must be decided before all other business in hand.” (1)
They having been enacted and established by American military authority, and although promulgated in two languages, there can be no doubt but that the English must be held to be the original.
It is evident therefore that in civil matters, at least, the Supreme Court is a Court of appeals and not a court of cassation..
From a different aspect, however, must the courts and the laws of Porto Rico be viewed and construed after the passage by the Congress of the United States of the Organic Act of Porto Rico, being entitled : “ An act temporarily to to provide revenues and a civil government for Porto Rico, and for other purposes”, aproved April 12, 1900, especially in view of the following sections of said act:
“Section 8. — That the laws and ordinances of Porto Rico now in force *91shall continue in full force and. effect except as altered, amended or modified hereinafter, or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict witch the statutory laws of the United States not locally inapplicable or the provisions hereof, until altered amended or repealed by the legislative authority hereinafter provided for Porto Rico or by act of Congress of the United States.” * * *
“Section 38.- — -That the judicial power shall be vested in the courts and tribunals of Porto Rico as already established and now in operation, including municipal courts under and by virtue of General Orders numbered one hundred and eighteen, as promulgated by Brigadier-General Davis, United States Volunteers, August 16, 1899, and including also the Police Courts established by General Orders numbered 195, promulgated November 29, 1899, by Brigadier General Davis, United States Volunteers, and the laws and ordinances of Porto Rico and the municipalities thereof in force, so far as the same are not in conflict herewith, all which courts and tribunals are hereby continued.” * * *
Although section 8 reads that the laws and ordinances in Porto Rico now in force shall continue in force and effect, except as altered, amended, etc., it should nevertheless be held that by said act the laws of Porto Rico became creatures of Congress and American laws by re-enactment; and that they must be construed in accordance and in conformity with the spirit, application, tendency and policy of American jurisprudence, and everything. contrary thereto, or inconsistent, incompatible or unsuitable, must fall without any special legislative action in that respect. And although said section 33 provides “that the judicial powers shall be vested in the courts and tribunals of Porto Rico as already established”, * * * “all of which are hereby continued”, they became thereby courts created and established by the Congress of the United States. It could not have been the intention of the military government, and certainly not that of Congress, to make and constitute the Supreme Court of Porto Rico a court of cassation, thereby giving it all the attributes of the Supreme Court of Spain. American doctrines and theories must control the courts of Porto Rico *93even in the construction of the laws of Spain, which are still found on the statute books of Porto Rico.
It is a principle of law recognized in the United States and adopted by this- court that, when the laws of a foreign country come under consideration by the courts of the United States, they will be construed in accordance with the constitution, institutions, spirit and jurisprudence of the latter’s courts, irrespective of the construction of the courts or other bodies of foreign countries.
In a suit before the Supreme Court of the United States as to whether a certain foreign institution was a corporation or joint stock company, the court said :
“ It is also urged that tlie several acts of Parliament we liave mentioned expressly declared that they shall not be held to constitute the .body a corporation.
But whatever may be the effect of such declaration in the courts of that country, it cannot alter the essential nature of a corporation or prevent the courts of another jurisdiction from inquiring into its true character whenever that may come into issue. It appears to have been the policy of the English law to attach certain consequences to incorporated bodies, which rendered it desirable that such associations as these should not become technically corporations. Among these, it would seem from the provisions of these acts, is the exemption from individual liability of the shareholder for the contracts of the corporation. Such local policy can have no place here in determining whether an association whose powers are ascertained and its privileges conferred by law, is an incorporated body.” Liverpool Life London Life and Fire Insurance Company. v. Henry K. Oliver, Treasurer. 10 Wall. 566-577.
I, therefore arrive at the conclusion that since courts of cassation, rules of cassation and appeals of cassation are foreign to our laws and legal system; they must be construed and interpreted so as to be in harmony with the legal procedure and methods governing courts in the- United States.
Writs of error have not yet been enacted in Porto Rico, and the Supreme Court should therefore be considered a *95court of appeals, with power to review any error apparent upon the record.
It has been generally held in the courts of the highest jurisdiction of the United States that where an error is apparent in the record it need not be presented by bill of exceptions even; but in this case the appellant has amply pointed out the errors of the trial court in its rulings. The execution of the document in controversy is not denied by the defendant and apellan! There could, therefore, not have been any other proper evidence before the trial court except the document itself. The construction thereof is the only point in issue, which cannot be affected by any verbal testimony.
It is an historical fact, of which the court should have taken judicial cognizance, that at various periods during the Spanish government, the circulating medium had to undergo many changes, and at about the date of the execution of the document in issue a change from Mexican to Spanish money (■moneda provincial) had been or was about to be made, the difference being about five per cent, in favor of the latter money.
It is a universal principle of law that courts in construing contracts must place themselves in the attitude of the contracting parties. The Civil Code' in force here, recognizing the principle referred to, contains the following sections:
“Art. 1281. — If the terms of a contract are clear and leave no doubt as to the intention of the contracting parties, the literal sense of its stipulations shall be observed.
If the words should appear contrary to the evident intention of the contracting parties, the intention shall prevail.”
“Art. 1282. — In order to judge as to the intention of the contracting parties, attention must principally be paid to their acts, contemporaneous and subsequent to the contract.”
“Art. 1283. — However general the terms of the contract may be, there *97should not be understood as included therein things and cases different from those with regard to which the persons interested intend to contract.”
“Art. 1284.- — -If any stipulation of a contract should admit of different meaning's, it should be understood in the sense most suitable to give it effect.”
Applying the principles of law set forth is these sections, it is obvious that the contracting parties at the time of the negotiations had in mind only the change of one peso to another 'peso, — simply a change of currency. It would be most unreasonable to presume that they had in mind a war with another nation, a change in sovereignty, and in consequence thereof a variation in its monetary system, and from silver to a gold standard of values. It would also be irrational to presume that if, for instance, the Kingdom of England had acquired the island of Porto Rico, that instead of Spanish pesos, pounds sterling would have to be paid. Nor is it reasonable to presume that the creditor would have been satisfied with francs instead of pesos in case the Republic of Prance had become the sovereign of Porto Rico. Such a demand by a creditor before a court of justice would be most remarkable and extravagant, when, in this instance, the debtor would have been required to pay sixty-six per cent, premium on the amount of his contract. This certainly was never contemplated by the parties. The construction of the District Court of Ponce of the contract in controversy permits of all these extraordinary comparisons.
It is contended that aleatory contracts are authorized in Porto Rico. They are permitted in all countries where contracts depend on future results, but in^the construction of such agreements or bargains it must appear that the contracting parties had in mind the contingencies which might arise. A person may buy a growing crop, when both parties would take into consideration an abundant harvest as well as a destruction of the crop by the elements, but that the contracting parties would have in mind the probability of a *99war, a change of sovereignty, and a consequent change of the monetary system, is highly improbable.
These views have seemingly been expressed by this court in the suit of Cayol vs. Balseiro y Georgetty, referred to by the majority of the court. The controversy in that suit was a document made and executed in 1894, the same year of contract in this suit, and involving a similar or the same principle. Therein appeared the following clause:
“And the balance of the price, amounting to twenty thousand pesos current money at the time the same becomes due and payable shall be paid * * * in gold or silver, to the exclusion of all paper money.”
The creditor contended that all payments due him after the passage of the above mentioned act to Congress, of April 12, 1900, would have to he made in American dollars instead of pesos. This court, however, holding otherwise, and speaking through Mr. Chief Justice Quiñones, states:
“Notwithstanding, and although it could not be considered that the purchase price of twenty thousand pesos and interest must be held to be current money at the time the same becomes due and payable at par, nevertheless the suit by Mrs. Josefa Cayol against Balseiro y Georgetty, is not maintainable. Convinced, as seemingly she was by the clause of the instrument, as she alleges in her suit, on account of the prospective change of currency which was expected from Mexican money, that the twenty thousand pesos and interest to be paid in such money as should be substituted therefor. The change of money having been established without considering the difference which could result in the relative value between the one and the other, the stipulation between the parties only referred to a special and particular case, and could have no application to an incident entirely different and to one which the parties could not foresee; for such would be beyond the limits of human prevision.”
“For this reason such events could not enter into the calculations and deliberations of the contracting parties that a change of money would be established five years thereafter by the American government in consequence of the change of sovereignty which happened in this island; because once provincial money was substituted for Mexican money, that thereafter the currency of the United States of America, with a discount of forty per cent, of its value should take its place. Hence on account of this extraordinary and unexpected event, article 1283 of the Civil Code is applicable, which says:
*101“However general the terms of a contract may be, there should not be understood as included therein things and cases different from those with regard to which the persons interested intended to contract.”
The Act of the Congress of the United States of April 12, 1900, above stated, reads as follows:
“Section 11. — That for the purpose of retiring the Porto Pican coins now in circulation in Porto Rico and substituting therefor the coins of the United States, the Secretary of the Treasury is hereby authorized to redeem, on presentation in Porto Rico, all the silver coins of Porto Rico known as the peso and all other silver and copper Porto Rican coins now in circulation in Porto Rico, not including any such coins that, may be imported into Porto Rico after the first day of February, 1900, at the present established rate of sixty cents in the coins, of the United States for one peso of Porto Rican coins, and for all minor and subsidiary coins the same rate of exchange shall be applied. * * * Provided, hoioever, that all debts owing on the date when this Act shall take effect shall be payable in the coins of Porto Rico now in circulation, or in the coins of the United States at the rate of exchange above named.”
The amount in said document mentioned was owing by appellant to apellee on the 12th day of April 1900, the day when said Act of Congress did take effect. By said Act it was declared that debts owing on that date should he payable in the coins of the Porto Bico, then in circulation, or in coins of the United States at the rate of sixty cents for every peso; of course at the election of the debtor.
The judgment of the District Court of Ponce, holding that instead of pesos due plaintiff the defendant should pay “dollars’’, is in violation of said section 11 of said Act of Congress thereby giving it a retroactive character. The appellant in his writing of appeal duly excepts to this ruling and to all the verbal evidence before the trial court; claiming the privilege conceded by the Act of Congress to pay sixty cents, money of the United States, for every peso he owed.
It was not, nor could it have been, the intention of Congress to change or affect contracts made in Porto Bico prior *103to the Treaty of Peace between the United States and the Kingdom of Spain. They should remain undisturbed, and unchanged.
The appellee had certain vested rights by virtue of the contract or document in controversy, namely the amount due him by the appellant; subject, however, to the agreed conditions that one peso should be substituted for another peso, in the event the government of Spain should have changed the currency in the province of Porto Rico. Vested rights between contracting parties must remain unaffected by the change of sovereignity; they can be neither increased nor diminished by any legislation of the new government.
“This is the principle of the law of nations, as expounded by the highest authorities. In the case of The Fama, in the 5 C. Kob. 106, Sir William Scott declares it to be the settled principle of the law of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property not taken from them by the orders of the conqueror, remain undisturbed.” — Eugene Leitensdorfer et al. vs. James J. Webb, 20 Howard, 176 (U. S.)
The Congress by retiring the Porto Rican coins and substituting therefor coins of the United States, fixed the value of the retired coinage only, and declared what amount or proportion of money of the United States should be paid by the debtor to his creditor instead of pesos on amounts owing at the date of the passage of the Act, should the debtor so elect.
For the various reasons above stated I am of the opinion that the Supreme Court should have reversed the judgment of the District Court of Ponce, and, as authorized under the existing laws here, should have rendered a decision to the effect that the appellant pay the appellee the amounts of money overdue or in past due, either in coins of Porto Rico *105which were in circulation on the twelfth day of April 1900, or American coins, or dollars, at the rate of -sixty cents for every peso.
Should read 1718.
In the Spanish text oí these sections use is made of the word “casación” instead of appeal ("apelación”) which is used in the English; except in section 45 wherein the phrase "recurso de casación” is used as the equivalent of “appeal in cassation.”