Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1905
Chargé Hutchinson to the Secretary of State.
Caracas, May 27, 1905.
Sir: I have the honor to acknowledge the receipt of the Department’s cablegram of May 22; [printed ante]; and my reply of the following day [printed ante].
In further connection with these cablegrams I beg to inclose a copy of the above-mentioned decision. By next mail I shall be able to forward the translation, which is difficult and complicated.
I have, etc.,
Decision of the court of first instance in the New York and Bermudez Company case.
The United States of Venezuela. In their name. The tribunal of first instance of the federal and cassation court.
The court has viewed the proceedings and heard the oral and seen the written addresses of the parties. On the 20th day of July, 1904, the attorney-general of the nation sued the New York and Bermudez Company through its representative, Robert Kemp Wright, to the end that he agree to the dissolution of the contract made by the minister of fomento with Horace R. Hamilton on the 19th day of October, 1883, approved by the National Congress on the 6th day of June, 1884, of which he is assignee; and to the end that he pay to the nation the damages caused by failure to execute the said contract, according to the just valuation of experts and calculated in accordance with the bases set out in the first additional article, and to the end that he likewise pay the expenses caused by the judicial proceedings. And the attorney-general alleging that the contract made with Hamilton is a contract of lease, the subject-matter of which is the enjoyment of all the natural products to be found in the wild lands of the former State of Bermudez, founded on the voucher and telegraphic dispatch which he annexed for the purpose of proving that the lessee had failed to make improvements which he was bound to make, such as the channeling of the rivers of the said state in conformity with the seventh case of article 373 of the code of civil procedure, requested that the sequestration be decreed of the mine that the company is developing at [Page 981] Guanoco, with all the apparatus and accessories of the development, to abide the result of the suit. In the minutes of the 21st of July, 1904.
Of Robert Kemp Wright and the sequestration asked for were granted and the sequestration was carried into effect by the judge of the civil division of the court of first instance in the seccion of Cumana. The legal formalities on this motion having been complied with, the tribunal under date the 4th of October, 1904, confirmed the minute of sequestration of the 21st day of July of the same year, a decision which the court of appeals in turn confirmed on the 15th day of February, 1905. The time for answering the action having arrived, they proceeded to do so at the sitting of the 5th day of August, 1904, at the hour previously appointed and in the presence of the parties. After the requisite pleadings were read the managing director of the company presented the answer in writing, signed by himself and Dr. Juan Bautista Bance, and based his contradiction both on the facts and on the law, because the Hamilton contract is not a contract of lease, since its provisions can not be adapted to the rules and consequences of a lease, because the rights conceded to Hamilton are not only optional, except that of developing, but the possibility of exercising them is doubtful and hypothetical; because the results of the contract were entirely uncertain and it was not the only example of analogous concessions; because all the advantages which the company was said to have, even if they existed, which is denied, do not vitiate the juridical chain of the agreement, and the profits obtained from the negotiations are the fruit of foresight and effort; because the obligations contracted have all been executed according to the tenor of the substantive law, and this appears from official declaration; because the obligations which the company is said not to have executed have no fixed term, and on fixing it, as the question is one of personal obligations, engendering personal actions, they would be barred because the company has other titles in virtue of which the asphalt lake, lands, and other appurtenances at Guanoco belong to it; because the rescissory condition has not such far reaching effects as the plaintiff attributes to it; because when the contract was made there were no motives that could give rise to allusions and purposes which are now said to have disappeared, and that the expression “natural products other than asphalt is so vague and ample that through saying too much it says nothing.” He summoned Horace R. Hamilton for the purpose of guaranteeing and safeguarding him; he asked that the cause be stayed and that the action should be disallowed; he expressly reserved the company’s rights of action for the loss and damage caused thereto by the sequestration and prayed for extraordinary time for taking evidence. The tribunal endeavored in vain to effect a settlement between the parties, granted the extraordinary time prayed for, and adjourned the proceedings.
The summons for guaranteeing and safeguarding having been granted, and the cause suspended in accordance with the provisions of article 281 of the code of civil procedure, it remained at that stage until by minute of the 23d of September, 1904, Dr. Juan Bautista Bance having withdrawn his demand for the safeguarding and guaranteeing, it was withdrawn, and the cause consequently followed its legal course. The time for putting in evidence having arrived the parties put in what they deemed expedient, and from the judicial debate it appears in the minutes from the evidence put in by Dr. Juan Bautista Bance that Andres J. Vigas and Ambrose H. Carner declared in Caracas; José Vicente Solis, Juan Bos, and Andres Campos in Guiria; José Maris Aristimuno at Maturin; Antonio Cervoni and Laureano Villalba at Guariquen; Charles Arno at Port of Spain; that in Philadelphia, State of Pennsylvania, through the interpreter, Gustavo Navarrete y Romay, a comparison was made of the report put in by Horace R. Hamilton, marked No. 2, which appears on folios 93 to 103 of the third volume; that it was certified at the ministry of fomento; that from the year 1883 to November, 1904, there had been issued 30 definitive titles of mines of distinct kinds, situated in the jurisdiction of the former State of Bermudez, and several titles in fee simple of wild lands in the same state; that the official notes marked with the numbers 374 and 375, issued to the civil and military chiefs of the former States of Cumana and Maturin, transcribed in the resolution published in No. 7986 of the Official Gazette, were forwarded by the minister of fomento, certified; that the contract made on the 1st of February, 1886, with Cornelius F. O’Brien for the supply of woods, and No. 7986 of the Official Gazette were put in; that the benefit was claimed of the sequestration proceedings and of the proceedings relating to the New York and Bermudez Company which are lodged with the minister of fomento, and a single copy of Hamilton’s report, confirmation of which was asked for and also put in. From the proofs of the attorney-general of the nation it appears in the minutes that the following persons declared: Manuel Guzman Alvarez at Barcelona; Rafael Velasquez at Cumana; Santiago Briceno A. at San Felipe; Ildefonso Nunez, Adolfo Alemnar, José Maria Aristimuno Coll, Angel Nunez, Manuel Antonio Gordon, and Lorenzo Arias at Maturin; that the experts, Doctors and Engineers, Santos Ortega, A. Gomez Franco, and Rafael J. Diaz put in the report which appears on folios 135 and 136 of the second volume; that a certificate was produced from the general accountant of the chamber of audits which shows the exportation of the natural products therein expressed to the 30th of June, 1904; 14 certified parts of the file marked with the letter “I,” substantiated in the ministry of fomento and referring to the contract made with Horace R. Hamilton for the development [Page 982] of building and cabinet woods, resins, plants, aromatic, essential, dye, and medicinal plants, in the States of Bermudez; Nos. 9065 and 3753 of the Official Gazette, the year book of the ministry of fomento for the year 1885, and a pamphlet or book entitled “Defense of the New York and Bermudez Company before the federal court of Venezuela in the suit instituted against the company by Messrs. Charles M. Warner and Patrick R. Quinlan to the end that it agree to the validity of the title of the asphalt mine Felicidad,” published by Dr. Juan Bautista Bance in January, 1904.
Both the testimonial and documentary proofs of the constituted attorney of the New York and Bermudez Company tend to show that the company has executed the contract and consequently the obligation to explore and develop the natural products to be found in the State of Bermudez; and of the witnesses already named put in for this purpose only José Maria Aristimuno and Charles Arno state that the company exported woods, the former observing that this took place from 1886 to 1887, and the second states from 1886 to 1888, without either of them saying to whom the wood was consigned; on being cross-examined cross-questions that Arno refused to answer on the first being put to him. All the other witnesses are not aware that the exportation of woods had taken place, and some, on being cross-examined, stated specifically that only asphalt had been exported by the said company. And Andres J. Vigas and Ambrose H. Carner referred to a certain publication, and the former ended by saying that only asphalt had been exported; Hamilton’s report, without date, marked with the number 2, proved to be in conformity with the original one and refers to a journey of inspection to the properties of the concession obtained by him in his contract, and proves that certain preliminary work had been commenced which was necessary for the enterprise, which had not yet begun to develop the asphalt nor constructed the railroad which it used for that purpose; the certified copies of the communications addressed to the civil chiefs of Cumana and Maturin, which appear on folios 88 and 89 of the third volume, prove that the government once more recognized the rights acquired by the company in the terms of its contract; and the certificate of the minister of fomento, published in the Official Gazette, No. 7986, showing that the company has executed its engagements, is an asservation whose legal efficacy must be considered in the light of law.
The testimonial proof of the attorney-general of the nation tends to demonstrate that the company had developed and exported only asphalt, thus disregarding the other obligations of the contract; that it has not channeled any of the rivers in the State of Bermudez; declarations made by Manuel Guzman, Rafael Velasquez, and Santiago Briceno A. are in agreement in asserting that the company has not done any channeling work, and that the monopoly that it exercises has prejudiced the mining industry and the development of the natural products of that state; the remaining witnesses already named, who declare at Maturin, agree in saying that it is years since the company has been excavating and exporting asphalt, and it is worthy of remark that these six declarations do not contain any substantial discrepancy, and it is seen from them that a considerable number of tons was exported annually and that this exportation was from about 1,900 to the exclusion of the other natural products of the state; from the examination made the experts in their journey from Cano Colorado to the coast guard of the same name and from there to Maturin, in spite of the careful inspection they made, did not find any work or sign or indication that showed that any attempt had been made to channel the Cano Colorado and the river Guarapiche mentioned in the second article which they had before them of the contract made with Hamilton. The documentary proof of the attorney tends to show that only asphalt has been exported; that the company was under the obligation to explore and develop the several natural products of the former State of Bermudez; that the obligation to channel was invoked by the company on wishing to renew it; that the monopoly exercised by the company was objected to publicly and before authorities by municipal councils, common councils, and private individuals, and these proofs by documents emanating from the said company, by the certificates of the minister of fomento of the contract and the additions thereto.
On making his address the constituted attorney of the New York and Bermudez Company proposed that the following questions should be decided as preliminary points: That of “incompetency of this tribunal to pass definitely,” relying on the supposed unconstitutional of attribute 5, article 16, of attribute 2, article 17, and of article 7 of the organic law of the federal and cassation court, and the necessity of the present judge abstaining from taking part in the cause for having expressed his opinion “on what now becomes the principal part of the suit.” In the demand instituted by the citizen attorney-general of the nation in the name of the latter against the French Company of Telegraphic Cables, as appears from the “judgment published in No. 9427 of the Official Gazette,” and for having classified the Hamilton contract as a lease on the motion for sequestration, in entire conformity with motive 15 for inhibition contained in article 117 of the code of civil procedure.
It is therefore necessary to decide both points before entering upon a consideration of the merits of the question that is being discussed and the tribunal resolves:
1. Whereas the law of May 5, 1904, or the “Organic code of the federal and cassation court,” is not in collision with attribute 14 of article 95 of the national constitution, which attributes to the said court cognizance “of the controversies that arise from the contracts [Page 983] or negotiations made by the President of the Republic,” but rather on the contrary regulates the manner in which the said court shall exercise the competency attributed to it by the constitution; and
Whereas in section 2 of title 6 of the text cited it is not in any way determined that the controversies that arise from said contract should be taken cognizance of and tried at only one instance; for which reason the Congress making use of attribute 16 of the constitution in force had the power to pass the law relative to the exercise of the attribute of this court and to make enactments with respect to the functioning of its consequent competency, giving necessary and sufficient legal power to act as judge of first instance in taking cognizance of said matters; for such reasons it is so declared.
2. Whereas in the civil procedure now in force there is no provision whatsoever that authorized the parties to move for inhibition and in Title IV. it duly expresses the motives for which judicial functionaries can be objected to and those for which they can and ought to abstain from sitting in judgment; whereas the motives mentioned by the constituted attorney of the defendant company has no legal ground it would not be allowable even to justify the present judge in abstaining spontaneously, since for this purpose the concurrence of the following circumstances would be necessary; to have expressed an opinion before the judgment and that that opinion were on the principal matter of the suit and that the judge objected to were a judge in the cause, article 117, number 15 of the code of civil procedure; and
Whereas the principal matter of the suit is not constituted hereby the incompetence and classification alleged, but by the cause for which the government sues the New York and Bermudez Company before the federal and cassation court, for such reason the second point submitted to the preliminary decision of this tribunal is hereby disallowed.
And as regards the action brought and the exception taken, the subject-matter of this judgment, the tribunal, having studied the minutes and the evidence taken and of the allegations of the parties, proceeds to give the reasons for its decision; and
Considering that contracts should be executed in good faith and should bind therein not only to fulfill what is expressed therein, but also to the consequences which arise from the same contract, according to equity, custom, or law (art. 1104 of the civil code);
That the contract made between the national government and Horace R. Hamilton and his cessionaires (folios 23–51 and reverse of the second volume; folios 1 and reverse of the first volume) is a bilateral contract in the sense of article 1078 of the current civil code and the corresponding one, No. 1061, of the code of 1881, under the operation of which that agreement was made and the constant addition of minutes was made at the request of the said Hamilton, and consequently that it is not possible in this case to affirm that reciprocal obligations have not arisen by reason of the stipulations therein contained, because it appears from a simple reading of the text of the agreement and of its additional article that if the Government of Venezuela contracted with Hamilton and his cessionaires the obligations .in articles 1, 2, 3, 4, and 7 of the instrument on folio 1 and reverse side of the first volume of the minutes, on the other hand he acquired the right specified in articles 5, 6, and 9 of the same instrument and those contained in the first and second additional articles of October 19,1883, and May 30, 1884, which constitute for the contractor Hamilton and his successors or cessionaires perfect obligations, recognized and accepted by the latter also in the contract which they made with Horace R. Hamilton on November 16, 1885, in New York and appears in the second volume of the minutes on pages 23 to 34;
Considering that obligations should be fulfilled exactly as contracted, the obligor being responsible for loss and damage in case of contravention (art. 1163, civil code of 1881, 1190 of the present one);
That it appears from the minutes, from the testimonial declarations rendered, and from the expert examination made, and from the certificates issued by the competent public authorities that the cessionaires of Hamilton have not complied with the obligations contracted with the government of the nation in numbers 5, 6, and 9 and in the additional articles of the above-mentioned instrument, and that they have only occupied themselves with the development of the asphalt;
That they can not object to the efficacy of the proofs put forward, to which reference is made in the ministerial resolution of July 23, 1900, and the certificate of the minister of fomento of the same date, because the first only recognizes in the company the right of making use of its rights in conformity with the Hamilton contract, which does not exclude the possibility of bringing suit later for the dissolution of the contract for a legal reason existing previously, as, if it is true that “the rescissory condition is always implied in bilateral contracts, in case one of the parties does not fulfill his obligations,” it is also true that the contract in this case is not dissolved rightfully. The party to whom the obligation has not been fulfilled has an option in his favor—to oblige the other to fulfill the contract, if possible, or to ask for its dissolution, besides the payment of loss and damage in both cases (art. 1110 of the civil code of 1881 and 1137 of the present one), a choice which being optional by this party can be carried into effect whenever it best suits his interest. And as to the second, the certificate of the minister of fomento, it, even if valid, could not vitiate the contrary acts, demonstrated completely in this suit by the testimony and proofs contained in [Page 984] the second volume of these minutes; but it is not valid, because it is illegal, and it is illegal because the certificate of the minister of fomento, dated July 23, 1900, is, at the most, testimony peculiar to the person of the minister, the particular opinion formed by him in view of the documents which he might have had before him at that time to form his individual opinion; certificate which, on the other hand, it was not in his authority to give, as is seen from the law of March 9,1898, referring to the ministries, on pages 26 to 29 and reverse of the compilation of laws, volume 21, which defined the attributes of the cabinet ministers, in none of which is found that of issuing the certificates in question. Moreover, a certificate made in the personal way above stated is not a “ministerial resolution” dictated in the name of the federal executive and by order of the President of the Republic, as is proven by reading the text in question. It thus lacks, both in form and matter, all legal force, as well because of what is stated above and because the constitution in force at the date of the certificate in question, which was 1893, in article 120, terminantly prohibits any magistrate or corporation from exercising functions which are not specially ascribed to him therein or in the laws, it declares null and void the acts emanating from all usurped authority in its article 118 and in article 95, already mentioned, that “all acts of the minister should be in conformity with the constitution and the laws;” and as the act invoked by the defendant is not in conformity with the laws, as these did not give to the minister of fomento the right to make such declarations, it is clear that the certificate above mentioned of July 23 is null through being the work of usurped authority and does not bind the Government of the Repu folic by any legal or juridic reason. In Venezuela the ministers of the cabinet are “the legal, only, and necessary organs of the President.” (Art. 94 of the national constitution of 1903; 83 of the present one.) Therefore the acts of the latter produce no effect nor do they bind for fulfillment when they do not come countersigned by the respective minister, and in the same way the acts of the minister have no effect when they consist of his own act, which he has not been authorized to do by the President of the Republic, unless by virtue of a special law to that effect, and in the case before us the minister of fomento was neither authorized by the law to issue certificates like those in question nor was he so authorized by the President of the Republic, as is proven by the very text of the document. The efficacy of this is thus absolute;
That the bilateral contract made between the Government of the Republic and Horace R. Hamilton, which appears in the proceedings, imposes on him conditions which were expressly accepted by his cessionaires in the instrument under which they acquired above referred to and which appears on folios 23 to 45 of the second volume, and that these conditions should be fulfilled in the way that the parties had desired or truly understood that they should be (art. 1111 of the civil code of 1881 and 1138 of the present one), without its being allowed that any of the said parties should invoke the nullity of such conditions, for here we are not treating of a suit for nullity, but for the dissolution, and the nullity of an agreement is not occasioned in absolute right except through the action of an express law, which determines it to be null;
That the conditions imposed on Hamilton and his assigns in the second additional article of his contract, expressly accepted by the New York and Bermudez Company, imposes on the latter the obligation to channel one or more rivers of the State of Bermudez, commencing with the Cano Colorado and the Guarapiche as far as Maturin, for exportation and importation, a work that the government bound itself to pay for by conceding to the company “the exclusive right of navigating the rivers that it might channel,” a condition that has not been complied with “in the manner that the parties intended,” as is demonstrated by the proofs made in the respective volumes of the evidence given by the parties and of the reiterated confessions of the defendant in the minutes of the suit from the time the answer has been put into the declaration of the action;
That the condition mentioned does not fall within the denomination of alternative, as the defendant maintains, since the said additional article does not give the company the right to elect whether it will channel or construct the railroad, as has been affirmed, since the sole paragraph of the said article only says that Hamilton “shall have the rights if he construct a railroad,” but in no way establishes that he shall not be obliged to channel if he construct it, which would result if the condition were alternative—that is to say, “to channel one or more rivers of the State of Bermudez, etc., or to construct a railroad,” and it is not so, according to the clear and precise text of that paragraph which indicates that Hamilton, if he constructs the railroad, should enjoy the exclusive use of the line and should in agreement with the government charge the dues for traffic on the line. And that that has been the intention of the parties can not be doubted, for if the paragraph were interpreted as the defendant wishes it to be, the result would be a palpable absurdity—that is to say, that the contractor, through the fact of having constructed a railroad, would have the right to navigate rivers not channeled by him and that have not been channeled by anybody, when the object of the additional article introduced into the contract at Hamilton’s request was the channeling of those rivers for “importation and exportation;”
That the obligations contracted by Hamilton and expressly accepted by the cessionaires do not constitute optional rights for them in the sense of their being able to execute them [Page 985] or not, according to their caprice or wish, is obvious, because “the failure to execute any of the stipulations here expressed ipso facto nullifies the present contract (art. 9), this the contractor himself states; and because in another sense optional rights are those the exercise of which is not barred by disuse and can be carried into effect by the proprietor when he pleases, and this is not the case with the New York and Bermudez Company, which will have to comply with its obligations and exercise its rights within the time fixed by the contract in the terms and manner therein agreed and in no other way. Nor is it admissible that the condition contained in the second additional article is optional in the sense of article 1104 of the civil code of 1881 and 1131 of the present one, since the contrary appears from the text of the said article, for the defendant company is not given the choice between channeling rivers or constructing a railroad, but it contracts the obligation of channeling and besides it has given to it the power to construct railroads, in which case it shall be able to charge dues, etc., of the line in accordance with the government, but the construction of the latter does not exclude the channeling of the former, which was the primary aim of the additional article;
That the principal matter in the present suit is the action for the dissolution of the contract made between Hamilton, his successors, and those claiming under him and the Government of the United States of Venezuela for failure to execute the contract and not the legal classification which the contract should have. And consequently it is of no value to the parties to establish now whether the contract is or is not a lease or whether it is unclassified, since the juridical motive, and even that of fact which the action brought involves, consists of the failure on the part of the New York and Bermudez Company to execute the obligations contained in the instrument transferred by Hamilton, with all its additional articles, to the said company, and the stipulations with which the latter undertook to execute in the manner desired and understood therein by both parties, since the New York and Bermudez Company accepted them, very expressly in the contract of transference made by Hamilton without reservations of any kind. But, as in the course of the debate it has been discussed, first, that the Hamilton contract is not one of lease, and, second, that the additional clauses are legally null, the tribunal thinks it expedient to decide both these points and establishes:
- First. By lease of things is understooda contract (art. 1487 of the civil code of 1881, and 1531 of the present) in which one of the contracting parties obliges himself to allow the other to use a thing for a certain time and at a determined price that the latter obliges himself to pay him.” Well, then, if these conditions or extremes are carried into effect in the Hamilton contract, the contract is one of lease. Let us see if they are fulfilled here. The government has conceded to Hamilton the right to explore and develop to which the first number of his contract refers, that of development determined in the second, that of navigation to which the fourth refers, and mentioned in article 7—that is to say, the government has obliged itself to allow Hamilton to enjoy the things therein indicated, and for the time fixed in the contract, which is twenty-five years, and for the price also determined in the articles 5 and 6, the additional article, to which article 6 of the contract refers. In them the price of the things leased is fixed. For these points the classification of “lease” is imposed on the contract whose dissolution is asked for, and moreover, because if it is true that real estate can not be leased for more than fifteen years and that leases made for a longer time are limited to that period, it is also true that in the present case one treats of “absolutely uncultivated lands,” of the forests existing on public lands of the State of Bermudez, excluding those of the section of Barcelona for their exploration and development; and article 1489 of the civil code of 1881 and 1533 of the present one establishes that leases of absolutely uncultivated lands can be extended to more than fifteen years, but not more than fifty, under the condition that they be cleared and cultivated; and as the development of the public forests contains the idea of its clearing and cultivation, it is logical to conclude that the period of twenty-five years fixed for the Hamilton contract does not take away from it its character of a lease, but rather confirms it. On the other hand, it appears from the minutes that the government made free the inlets and rivers of the State of Bermudez to Hamilton and to his successors and the public forests of the same jurisdiction, and it appears also from the minutes (second volume) that Hamilton and his successors have not exploited the forests in question, nor do they develop them at the present time, as well as that they have not channeled the rivers mentioned in the second additional article. The government, therefore, has fulfilled for its part the obligation of every lessor of things, that of guaranteeing the lessee in the enjoyment of the thing leased. Moreover, the lessee has not fulfilled his in the whole extension of the contract, because he has limited his efforts to the sole development of an asphalt lake, to only one kind of natural product, prescinding from the development of the uncultivated lands and from the said channeling, as is proven by the proofs advanced by the plaintiff.
- Second. The legal nullity of the additional clauses of the Hamilton contract is the second point sustained by the defendant. In respect to this the tribunal considers that, as to the additional articles of the Hamilton contract they can be considered, as regards the same contract, as accessories to the principal part which in no way alter or vitiate the substance thereof, but that, rather to the contrary, it is supported; that the principal part was approved by the National Congress in its sessions of 1884, as appears from the minutes, as was the [Page 986] accessory part in the sessions of the Congress of 1885, on considering and approving the special yearbook of the minister of fomento in that year in which the attention of the legislative body was especially called to the contracts added to after their approval by the preceding legislature. The contract was, then, legally made between the parties. The defendant accepted the additional articles in all their extension. Therefore the contract has the force of law between them and obliges them to fulfill it, not only in what is therein expressed, but in the consequences which may arise according to equity, custom, and law; and, moreover, the additional clauses can be and should be, as a last resort, considered as those consequences that the parties, so as not to leave them to the criticism of judicial judgment should wish to attach to them in a way expressed in the said “text of the contract, it being, consequently, unnecessary for their validity that they should be submitted individually to the discussion and approbation of Congress, as is the case with the laws ordinarily passed by the legislative power regarding general matters of its jurisdiction, as approval had been given to the Hamilton contract, of which the additional articles are merely accessories which follow their legal and juridical fate.
Considering:
That article 9 of the contract, the dissolution of which is asked for, imposes on the defendant the obligation of commencing its fulfillment within the period of six months, prorogable for six months more at the option of the government, counting from the date on which it was approved by the federal council under pain of nullity;
That it appears on the minutes that on many occasions Hamilton and the cessionaries petitioned that they be allowed an extension for the beginning of the explorations and development of the natural products of the forests existing on the wild lands of which number 1 of the instrument of 1883 treats, and for the channeling of the rivers named in the second additional article, without their having up to that date fulfilled what had been agreed upon; that the judicial fixing of the period within which the obligation should be fulfilled occurs when there is no stipulated term and if the nature of the obligation or the manner in which it should be fulfilled or the locality of its fulfillment renders it necessary (articles 1118 of the civil code of 1881, and 1145 of the present), or if the period has been left to the wishes of the obligor, which is not realized in the present case, because the parties fixed in the cited article 9 of the document of 1883 the term of six months “for commencing the contract”—that is to say, the exploration and development of the products specified in it, and especially of those of its numbers 1 and 2 and the second additional article, without it being possible to separate the exploration from the development, as to-day the defendant pretends to do, because the contract which is the law of the parties, does not do so, but rather to the contrary, comprises in the phrase “beginning the execution of the present contract,” the two terms “exploration” and “development” which are used in the text; and finally
Considering:
That the limitation invoked by the defendant regarding the personal obligations which the stipulations of the Hamilton contract imposed on him for its nonexecution in twenty years is not admissible, because the duration of this contract is twenty-five years, as article 9 stipulates, and such a stipulation of the period makes it not liable to be barred in the sense that as long as this is not concluded the sense of the obligation, which it is pretended to bar, is renewed, and consequently the limitation for nonexecution of clause 9, which fixes the time for the beginning of the execution of the contract whose dissolution is asked for, does not take effect, and, moreover, because in any case the minutes show that twenty years have not elapsed since the last extension of grace conceded by the government at the petition of Hamilton, which bears date October 13, 1885, and expires in April, 1886.
On account of these facts, administering justice by authority of the law, the suit brought by the attorney-general of the nation against the New York and Bermudez Company, a limited company, established in Philadelphia, and with a domicile in this city, is declared to be well founded, that is to say, the contract made between the minister of fomento and Horace R. Hamilton, on October 19, 1883, and its additional clauses, is declared dissolved; and the aforesaid company is ordered to pay the loss and damage sued for according to a just valuation by experts. No special order is made as to costs.
Publish and register.
- J. I. Arnal.
- Juvenal Anzola,
Secretary.