dissenting.
San Juan, Puerto Rico, February 22,1971
I agree that Rule No. 56 of the Rules of Civil Procedure is elastic, and is not subject to the limitations and technical requirements of the statutory remedy of garnishment prevailing in the United States.
However, I dissent from the outcome which the majority opinion has reached for the reasons which I state hereinafter.
1. — When Metropolitan Constructors, Inc. (hereinafter called Metropolitan) incurred the nonperformance of its subcontract with principal contractor F. D. Rich of P.R., Inc. (hereinafter called Rich) on account of which the latter considered said contract as terminated without Metropolitan objecting thereto, the following situation prevailed:
(a) Metropolitan had not finished the subcontracted work.
(b) Metropolitan and Rich stipulated that the amount of $57,189.29 withheld by Rich under the subcontract with Metropolitan was not for work done. In other words, the amount paid by Rich to Metropolitan up to the date when the contract was deemed as terminated constituted the total payment of the work which Metropolitan had performed under said subcontract. As a result of this we should infer that all the materials supplied by Aníbal L. Arsuaga, Inc. (hereinafter called Arsuaga) to Metropolitan were used in the work performed up to that moment by Metropolitan or in the part not used in said work, stored by the latter.
2. — Metropolitan’s surety having been requested to finish the work, and the former having requested its indemnitors to do so, they contracted Andújar who finished it to satisfaction for which it was paid the amount of $42,874.25.
*175As there is no evidence to the contrary, we should infer that no material supplied by Arsuaga was used in the termination thereof.
Now, Metropolitan has no right or title whatsoever to the amount withheld by Rich when its subcontract was terminated on account of its nonperformance. At most, perhaps it may be concluded that it should receive any remnant of said withheld amount after the cost of the termination of the subcontract by Andújar and the claims of the U.R.H.C. as owner of the works are paid to the indemnitors of the surety.
As Arsuaga, in his capacity as materialman of Metropolitan cannot claim, insofar as the amount withheld is concerned, a greater right than the one which Metropolitan had over the same, it seems obvious to us that its judgment against Metropolitan can only be satisfied from, and the attachment in execution of the same can only be effective over, that part of the withheld sum which at law belongs to and is payable to Metropolitan, the amount refundable for the cost of terminating said subcontract not being so far the indicated reason.