ON REHEARING
Argued July 22, 1941. — Decided July 23, 1941.
The judgment rendered in this case was reversed and in its place, judgment was rendered against plaintiff appellee on June 11. On the 20th of the same month, the plaintiff appellee filed a motion for rehearing; and the hearing of said motion was set for the 22nd of July, it being understood by the parties that if the court decided to grant the reconsideration either wholly or in part, it would not only grant said reconsideration but would render judgment in accord with the facts and the law.
The hearing was held on the appointed day. With respect to the question that the contract executed by the plaintiff and Mrs. Vila Font was not one of surety for the account which the defendant had with the plaintiff and as a. consequence thereof, that the plaintiff had no right to merge said account with the balance unpaid on the contract,, *853our criterion is the same. All that we -said therefor in onr opinion of June 11, 1941, still stands.
But in said opinion we failed to consider and decide the effect which the second and third averments from defendant’s answer might have on the final decision of the case. By virtue of these two averments which are copied in our opinion, defendant admitted that according to his information and belief, the sum which he owed the plaintiff mounted to $50, and alleged that the reason why he failed to pay was that plaintiff refused to show him the remaining notes signed by him, and this issue requires consideration and decision.
The defendant himself in the course of his testimony at the trial, said:
“A. — Before suit was brought, Mr. Frontera visited my house and gave me a bill which amounted to about $107 more or less.
“Q. — You remember on what date he gave you that bill?
“A. — -No, I don’t remember the exact date, but Mr. Frontera gave me that bill and I was sure that I did not owe that amount to the firm of Merino Rodríguez & Hermanos and I had proof, a letter from Mr. Vélez written to me before the bill had been made out, in which he charged me with the amount of $50. I told him that I had signed some notes in favor of the Merino firm amounting to about $125 and my belief was in accord with correspondence exchanged with Mr. Vélez, the Chief of the credit section, that I only owed $50 but that if they showed me new notes signed by me I would answer for whatever notes were so signed . . .
í Í 'w '!£
“Q. — Do you deny having received that merchandise?
“A. — No, I do not deny having received that merchandise because I have already told them that the merchandise was delivered to me through a current account opened by Mrs. Berta Vila in order to pay some money which she owed me.
Q. — Then when Mrs. Font’s credit with Merino Hermanos was exhausted . . .
“A. — At that time I needed some more materials and I opened a current account because of the friendship which now existed, and was granted a credit with a limit of $125.”
*854What the answer admitted was therefore upheld and explained by the evidence offered at the trial.
With respect to the promissory notes which it is alleged were signed and whose nondelivery was the cause of defendant’s refusal to continue paying' this debt there is no clear evidence in the record. The evidence for the plaintiff mentions certain notes signed by Mrs. Vilá, which employee of the plaintiff said he collected from the defendant and then lost them, as a result of which a notice was published in “El Mundo” but there is no evidence concerning’ any notes signed by the defendant.
At all events, even though the notes had actually been signed, they would only be the outward symbol of the debt which the defendant had the duty of paying, of course it being clear that after payment the notes become ineffective.
Having reached these conclusions, what should the decision of this court be?
There is no doubt at all that the reconsideration requested lies with respect to the point above stated, since although the defendant is not bound to pay the debt contracted by Mrs. Vila with the plaintiff, he does have to pay his own debt, whose balance in plaintiff’s favor he himself admitted was $50.
That being so, we must render a new judgment releasing the defendant from all liability for the balance of Mrs. Vila’s account, which was wrongly merged with his, but condemning him to pay the sum of $50.
It is obvious that there will be no award of attorney’s fees, since the defendant was not obstinate in defending himself, but the judgment will have to include the costs of the proceeding having in mind the mandatory provisions of the statute. Section 327 of the Code of Civil Procedure as amended by Act No. 69 of 1936, page 352; Hance v. R. Méndez & Hno., 54 P.R.R. 671.
If the defendant had' not merely done what he did but had taken steps in harmony with the procedure established *855by Section 336 of tbe Code of Civil Procedure, then not only would he not have to pay the costs of the proceeding bnt the plaintiff would have been obliged to pay them.
For these reasons, the judgment rendered on June 11 must be reconsidered and in its place judgment must be rendered condemning the defendant to pay to the plaintiffs the sum of $50, as balance of the debt claimed in the complaint, and as a result, any note signed by the defendant in acknowledgment of the same is hereby cancelled, and costs are imposed on the defendant, but not attorney’s fees.