DISSENTING OPINION OP
The undersigned justice regrets exceedingly that he is obliged to dissent from the respected opinion of his learned colleagues, and formulates a dissenting opinion as follows:
The findings of fact and conclusions of law of the judgment appealed from are accepted.
Although under the conditions established in the contract entered into between the Banco Español de Puerto Rico and *527tlie General Intendancy of the Treasury on June 27, 1894, when the former assumed charge of the collection of the territorial and industrial and commercial tax in all the towns' of the Island, the bank was authorized to appoint agents or delegates to effect the collections in its name and under its liability. The appointment of these agents was to be approved by the General Intendancy of the Treasury, which reserved the right to demand their removal under grave circumstances and when the interests of the State might require it, and after having been appointed and approved by the In-tendancy, they were to be considered for all legal effects as the collectors then existing and as having the character of agents of the public Administration, and were to subject themselves in the performance of their duties to the legal provisions in force at that time, and to the special provisions concerning them contained in the schedule of conditions governing said contract.
As, according to the conditions of the contract, the accounts of collections to be rendered at the end of every quarter by the collectors, with the counter signature of the governor of the bank, were to be submitted for examination and verification to the respective local administrators and collectors, without prejudice to the general statement to be presented by said governor, within the six months’ extension, to the General Intendancy of the Treasury of the accounts relating to each budget, in order that they might both be examined by the bureaus or offices to which presented, and after the settlement by the bank of-any discrepancies found therein, approved in due form, within the shortest period possible, it is evident that the Treasury authorities are those who must finally decide as to the approval of these accounts, and consequently on the acceptance of the receipts which might be returned by the collectors on account of lapses and discontinuances in discharge of the liability of the bank. This is confirmed by the twelfth clause of the contract referred to, which *528provides that the receipts delivered to the bank by the Treasury for collection, and the amounts which it might receive for occasional fees and licenses, shall constitute the charge against the bank, and the sums turned into the Treasury and the receipts whose return might be accepted by the Treasury on account of lapses and discontinuances shall constitute the credit in its favor; hence, until the approval of these accounts is obtained the liability of- the bank to the Treasury cannot be considered to have ended, nor that of the collectors to the bank, because being agents of the latter, as they are, they must indemnify it for all loss and damage which it might suffer through the improper performance of their duties.
As the accounts of the tax collectors of A recibo for the fiscal year 1897-98, of which Primo Cosgaya y Villegas had charge, have not as yet been approved, as shown by the certification issued by the Treasurer of Porto Rico, which appears at folio 101 of the record of these proceedings, the liability of Collector Cosgaya to the bank continues in force, and, therefore, the plaintiff, his widow and heir, has no right of action to demand of the former the return of the bond which he furnished it for the specific purpose of guaranteeing the liabilities which the Treasury might seek to enforce against it on account of the fault of the collector.
Although at the -time of the delivery of the taxes collected in Arecibo, of which Primo Cosgaya y Villegas had charge, corresponding to the fiscal year 1897-98, no charge was-made agaist the collector nor any discrepancy found, this does not imply that the bank had approved the account presented by the former, because apart from the fact that it was not the bank which had the power to approve it, the official having-charge of its receipt set forth in the memorandum thereof its result only, without making any statements which were not within his province, in discharge of, the liability of the collector.
Although when Primo Cosgaya accepted the agency con*529ferred on Mm by the Banco Español de Puerto Eico in placing him in charge of the collection of taxes in the district of Arecibo, no document whatever was executed between him and the bank setting forth the respective obligations and rights of both parties, it is to be assumed, in view of the special nature of this agency and the acts of the parties both prior and subsequent to its establishment, that it was to be carried out with the mutual understanding that the parties were to submit to the conditions stipulated in the contract entered into between the Intendancy and the bank, especially when Primo Cosgaya having held the office of collector of taxes previously, it is to be presumed that he was perfectly aware of the manner and form in which the collections were to be made and the liabilities which they entailed.
The bank being directly liable to the General Intendancy of the Treasury for all the acts of Cosgaya in the collection of the taxes, it is logical to deduce as a natural consequence of the contract entered into between Cosgaya and the bank' that until the liability of the latter towards the Treasury is not definitely settled, the liability of the collector towards the bank must be considered to stand, in accordance with the provisions of article 1258 of the former Civil Code, concordant with section 1225 of the Code in force, according to which ‘ ‘ contracts are perfected by mere consent, and from that time they are binding, not only with regard to the fulfillment of what has been expressly stipulated, but also with regard to all the consequences which, according to their character, are in accordance with good faith, use and law.”
The two letters transcribed in the judgment and addressed on August 19 and September 23, 1898, to Primo Cosgaya by Armando de la Hera and the deputy governor of the bank, Carlos María Soler, respectively, calling upon him to turn over the collections to his successor appointed by the bank, under the promise of returning him his bond, are not opposed to these conclusions, inasmuch as this offer could not be con*530strued otherwise than in the sense that his bond would he returned to him, provided the delivery should not show any liability to the bank, but as this did not occur, as the memorandum of the delivery shows the return by the collector of receipts for the territorial tax and the commercial tax for more than 5,000 pesos, until the Treasury, which has the power to decide this matter, does not pass on the admission of these receipts, the liability of the bank towards the Treasury continues, and, consequently, that of the collector towards the bank continues also in force, and, therefore, the bond furnished by the former to the latter to answer for any loss or damage which the bank might suffer in connection with the collection of taxes which it placed in his charge also continues in force.
The costs should be taxed against the party whose claims are totally rejected.
In view of the legal provisions applicable to the case, and especially articles 661, 1091, 1709, 1718, 1886 and 1871 of the former Civil Code, reproduced by sections 669, 1058, 1611, 1620, 1767 and 1772 of the Code in force, we adjudge that we should affirm and do affirm the judgment appealed from, with the costs against the appellant.