DISSENTING OPINION OP
MB. CHIEF JUSTICE DEL TOBO,MB. JUSTICE-HUTCHISON CONCURRING.
For the purpose of not making this opinion unnecessarily long I admit the facts as stated in the preceding majority opinion.
Section 25 of the Law of Evidence reads as follows:
“When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms,. *830and therefore, there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases:
“1. Where a mistake or imperfection of the writing is put in issue by the pleadings.
“2. Where the validity of the agreement is the fact in dispute.
“But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section thirty-four, or to explain an extrinsic ambiguity or to establish illegality or fraud. The term ‘agreement’ includes deeds and wills, as well as contracts between the parties.”
And section 28 reads as follows:
“For the proper construction of an instrument, the circumstances under which it was' made, including the situation of the subject of the instrument and of the parties to it may also be shown, so that the judge be placed in the position of those whose language he is to interpret.”
The reference in the English text of section 25 is not to section 28, but to section 34 which reads as follows:
“Evidence must correspond with the material allegations, and be relevant to the question in dispute. It is, however, within the discretion of the court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is necessary to its proper determination, or when it affects the credibility of a witness.”
As may be seen, these provisions are closely related to sections 1248 and 1249 of the Civil Code, as follows:
“Sec. 1248. If the terms of a contract are clear and leave no doubt as to the intentions 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.
“Sec. 1249. Tn 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.”
We co,uld cite hundreds of opinions of the United States *831Supreme Court, of that of Spain, of the Supreme Courts of the States, of the Federal Courts, and admirable passages of ancient and modern commentators construing that principle.
In stating the general rule Corpus Juris says:
“Tbe most usual application of the parol evidence rule is with respect to contracts, as to which it is established that in the absence of fraud or mistake parol or extrinsic evidence is not admissible to vary, add to, modify, or contradict the terms or provisions of the written instrument by showing the intentions of the parties or their real agreement with reference to the subject matter to have been different from what is expressed in the writing; for where the parties have deliberately put their engagements into writing in such terms as import a legal obligation, without any- uncertainty as the object or extent of their engagement, all previous negotiations and agreements with reference to the subject matter are presumed to have been merged in the written contract, and the whole engagement of the parties and the extent of their undertaking is presumed to have been reduced to writing. The rule, however, goes even further than this, and it has been established that where the instrument is free from ambiguity and is in itself susceptible of a clear and sensible construction, parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing.” 22 C. J. p. 1098.
It continues treating of the question extensively and ou reaching the exceptions to the rule says:
"There is perhaps no rule of law or of evidence which is more flexible or subject to a greater number of exceptions than the rule which excludes parol evidence offered to vary or explain written documents. It has been said that in the multitude of exceptions much confusion has arisen, so that the exact limit to be placed upon the exceptions depends not only upon the peculiar facts of each case, but also to some extent upon the peculiar cast of thought of the individuals composing the court. It may be stated generally, however, that the courts have endeavored to adapt their rulings, either way, to the obvious demands of abstract justice in each particular case. The result is that, while the decisions are fairly uniform with respect to their abstract statements of the limitations of and exceptions to this rule, when the question arises as to whether a case *832presenting' a particular state of facts comes within the general rule,, or is taken out of it by one of the recognized limitations or exceptions, or again brought within it by one of the numerous limitations of and exceptions to those limitations and exceptions, the authorities-are in many instances in hopeless conflict.” (Italics ours.) 22 C. J. p. 1144.
Now let us examine the facts of the case as they appear in the first part of the majority opinion.
There is no doubt whatever that the managing partner of the defendant firm went to a notary and executed a public instrument conferring power of attorney on plaintiff Sarria to represent the defendants and that at the foot of the instrument the following appears:
“It is so executed, after stating that Sarria shall receive as fees one hundred dollars per month for his services as such attorney in fact. ’ ’
Although the wording is not entirely correct, yet any person of average intelligence would deduce from, reading the document that Sarria- was appointed attorney in fact with one hundred dollars a month as compensation for his services.
On the strength of that instrument and on his having-rendered the services referred to therein, the plaintiff brought this action.
What did the defendants do? They admitted in their answer the execution of the power of attorney, but alleged that it was not true that they had agreed with Sarria to pay him any salary as attorney in fact, explaining that Sarria was their employee and as such was earning and had received in full one hundred dollars per month.
Is the answer sufficient? In our opinion it is, although Ave recognize that it would have been better practice to allege expressly that a mistake had been made in stating in the power that Sarria’s salary was for his services as attorney in fact, while in reality it was fixed as compensation for all services which he had been rendering and might render in the future to the firm.
*833It is true that there is jurisprudence which says that “In order that parol evidence may he admissible to show a mistake in a written instrument the existence of such mistake must have been alleged in the pleadings, and the allegation must have been sustained by proof.” 22 C. J. 1228. But there is also jurisprudence which establishes that “The principle admitting parol evidence to vary the consideration expressed in a written instrument does not. rest upon the ground of fraud, accident, or mistake, and hence it is not necessary, in order to form a basis for the admission of such evidence, that the pleading should contain any allegation thereof.” 22 C. J. 1161.
The first case cited in support of the last note is the Porto Bican case of Cabrera v. American Colonial Bank, 214 U. S. 224. On the margin of that opinion are copied sections 25, 28, subdivision 2 of 101, subdivision 38 of 102, section 107 of our Law of Evidence and section 1186 of our Civil Code, and, among other things, the following was held:
“The provisions of the Spanish Civil Code, which was in force in Porto Rico until 1902, to the effect that the obligations of a contract must, be complied with according to their terms and that evi-. denee cannot be introduced to vary them are practically the same as the principles of the common law and are subject to similar well-recognized exceptions. ’ ’
The wording of section 25 of the Law of Evidence shows that it refers expressly to the terms of an agreement reduced to writing by the parties. Here the power was executed exclusively by the managing partner. 'The plaintiff was not present. Therefore, it was not a contract where both parties appeared and deliberately agreed and their agreement was reduced to writing in the instrument ratified and signed by. them. In order to convert the act of the managing partner into a contract it must be placed in relation with Sarria and that being so, how can the relation be established without the aid of oral evidence? It was not and when the plaintiff *834presented his evidence he took the stand and began by testifying about his relations as employee of the firm, about his salary as such, about his duties, about his appointment as attorney in fact, about, the increase in the amount of his work after the power was conferred, although he acknowledged that he acted as attorney in fact for the firm from the start. During all the direct examination the only reference to the instrument of power was this: “Was that power of attorney reduced to writing? Yes.” :,This incident speaks of the knowledge which the plaintiff had of the instrument. When the plaintiff testified for the last time and in answer to a request from his counsel that he explain the statement of witness Eduardo Alvarez about the Dorado suit he answered:
‘ ‘ W. — No; be wanted me to present the complaint in the attachment proceeding and as I had other things to do and he was lazy, I requested him to do it, and moreover I understood that an attorney in fact was not authorized by law to bring attachment proceedings. ’ ’
However, if he had read the instrument of power he would have found that its fifth clause was a follows:
“Fifth. — To demand amicably payments by the debtors of the firm, to agree on the manner and form of payment, to issue receipts and discharges, or to present the corresponding claims in the proper courts of justice.”
This being so and having necessarily to resort to the oral evidence in order to establish the contract and it being simply sought to explain the consideration for it, which was no other, according to the defendants, than the engagement of Sarria as their employee with a monthly salary of one hundred dollars and placing him in a position to represent the firm during the absence of the managing partner by performing all of his> duties as in the past and especially enabling him if necessary to represent the firm in the courts of justice, and which, according to 'Sarria, was a separate salary of one hundred dollars, we must conclude that such evidence, notwithstanding the deficiencies noticeable in the *835answer, was properly offered and admitted and should be taken into account for a determination of the case. We think it proper to transcribe the answers of the plaintiff to the questions of his counsel. They are as follows:
“P. (A) — What induced you to accept that position? W. — That it was offered to me at $100 monthly. A. — Who offered it to you? W. — The managing partner, Victoriano Alvarez. A. — If you had not been offered that salary would you have accepted the position of attorney in fact? W. — No; because I was earning $100 a month as bookkeeper and Correspondent and I was not going to assume new responsibilities without consideration.”
The evidence shows, so clearly that the plaintiff was receiving only one salary for all of his services that we shall not stop now to make a detailed analysis of it. The logical and full testimony of the managing’ partner, the definite statements of the other employees of the firm, the firm’s books kept by the plaintiff himself until November of 1923, his statements on leaving the firm about crediting’ to him as a bonus the balance against him, and above all the note written by him to his brother-in-law Pórtela, speak so eloquently that the explanations to the contrary which the plaintiff seeks to offer can not offset their weight. That evidence explains the instrument of power. It was a fact, the power of attorney was a fact, the salary was a fact, but the salary was not fixed solely as a consideration for the services to be rendered by the plaintiff as attorney in fact, but as a compensation for all of his services.
And this is not all. If the evidence to explain the contents of the instrument could not be admitted, it must be recognized that the plaintiff was under the obligation to prove, in order to recover the salary fixed therein, that he had made use of the power, and in our opinion all that the evidence shows is that the only time when he was really required to malee use of the power he refused to act.
It is true that the work with which the plaintiff had been *836entrusted in the firm was within the province of an attorney in fact, hut it is also true that he did that work from the start, as is shown by the orders and checks introduced in evidence and the testimony of witnesses, without the necessity of a power of attorney. He could have continued in the same manner without the power and therefore his claim based on the instrument would never be justified.
' For the foregoing reasons the judgment sustaining the complaint should be reversed.
In our opinion the counter-claim should also be reversed: In our judgment that is where the plaintiff spoke the truth. The balance against him would be credited to him as a bonus. Such is the general practice and it would be fair. We believe it to be true that the amount claimed as owing appears from the books, but we also believe that an offer was made-to write it off. No claim would ever have been made against the plaintiff if this action had not been brought.