MARCIANO RIVERA vs. ONG CHE

FIRST DIVISION[G.R. No. 11176. December 21, 1917.]

MARCIANO RIVERA, plainti-appellant, vs. ONG CHE, defendant-appellee.

Ramon Salinas for appellant.J.C. Hixson for appellee.

SYLLABUS

1. SALE; ACQUISITION OF TITLE BY SECOND PURCHASER. the ownerof certain mill machinery exposed it for sale upon the premises of L, withauthority in the latter to sell it. While the property remained at this place theowner, acting through another agent, C, sold the property to the plainti R.Before it was removed by the latter, L, by mistake, sold part of the samemachinery to the defendant O, who purchased in good faith and took possession.Held: In an action brought by the plainti to recover the disputed property, thatthe defendant had acquired the title under article 1473 of the Civil Code.

2. PROCEDURE; CONTINUANCE. An application for a continuance onthe ground of the absence of material witnesses is addressed to the discretion ofthe trial court, and its ruling thereon will not be disturbed unless it clearlyappears that such discretion was abused and that by the refusal of thecontinuance a party has without his fault been deprived of an opportunity ofpresenting his case of defense.

D E C I S I O N

STREET, J p:For some time prior the events which gave origin to this lawsuit, the house

of Lichauco, or Lichauco Brother had oered for sale a certain old machinery andboilers which were deposited and exposed for sale in a yard at Tanduay, in thecity of Manila. The plainti, Marciano Rivera, alleges that upon January 8, 1912,he purchased some of this old material for the price of P5.500, and received areceipt from Cresanto Lichauco showing that he had become such purchaser.These things consisted, according to said receipt, of two complete steam-boilers,with chimneys; one steam motor (15 by 30 inches) complete; one pair of twinrice hullers complete, and a feeding pump (donkey) for boilers.

The plainti, however, did not take possession of the property, whichremained in the same place. It further appears that upon February 9, 1912, thedefendants, Ong Che, bought from Lichauco Brothers a lot of old iron, machinery,and junk for the sum of P1,100. This purchaser took immediate possession of thematerials purchased by him. Later, when Marciano Rivera appeared to takepossession of the things of which he supposed himself to the purchaser, underthe receipt given by Crisanto Lichauco, he found that many of the accessory andauxiliary parts of the boilers, motor, and rice mill were wanting; and uponinvestigation it developed that these articles were held by the defendant, OngChe, and were claimed by him as owner by virtue of the purchase eected byhim upon February 9, as stated above. The plainti thereupon instituted thepresent action to recover the articles in question alleging that he was the trueowner thereof. At the hearing in the Court of First Instance of the city of Manilajudgment was given in favor of the defendant and the plaintiff has appealed.

We concur in the conclusion reached by the judge of the Court of FirstInstance that the defendant, Ong Che, was a purchaser of these articles in goodfaith. It is furthermore uncontroverted that he acquired possession by virtue ofhis purchase. He, therefore, undoubtedly has, under article 1473 of the CivilCode, a better title than the rst purchaser, who has never had possession at all.The only doubt as to the application of that article to the present case arises fromthe fact that there is some conict in the testimony upon the question as to whowas the original owner. It is to be inferred from the testimony that the house ofLichauco consists of Faustino Lichauco and Galo Lichauco, and it would seem thatCrisanto Lichauco, who eected the sale of Rivera, is not a member of thatestablishment. Crisanto testied that the property sold by him to the plaintiRivera, including the articles which are now in dispute, was the property of GaloLichauco. There is grave doubt as to correctness of this statement, however, asthe same witness admits that the machinery sold by him to Rivera had beentaken out of an old mill owned by Lichauco Brothers in Dagupan; and it is notmade clear that Galo Lichauco had ever become its exclusive owner.Furthermore, the evidence submitted by the defendant tends to show that thethings acquitted by him, including the articles in dispute, were bought fromFaustino Lichauco as property of the house. At any rate we nd that, under thecircumstances disclosed in this case, and even conceding that property belong toGalo Lichauco, the house of Lichauco had authority to sell it. In this view the casepresented is that where two dierent agents of the same owner successivelynegotiated sales to two dierent purchasers, and it is obvious that, under thearticle of the Civil Code cited above, the second purchaser having acquiredpossession rst must be declared the true owner. In our view of the facts it wasmerely a case where a mistake was made by the house of Lichauco in sellingsomething that had already been sold.

Other aspects of the case are equally fatal to the contention of the plainti.It was incumbent upon the plainti to prove title in himself, as against thedefendant, by a preponderance of the evidence; and he could not recover merelyupon the weakness of the defendant's title. (Belen vs. Belen, 13 Phil. Rep., 202.)The court below held that the plainti had failed to prove title in himself and wesee the no reason for disturbing the judgment on this point. The defendant had,

in his favor, the fact that he was purchaser in good faith and had acquired lawfulpossession. There is a presumption arising from such possession that he was theowner (sec. 334 [10], Code of Civel Procedure); and the mere fact, if such it be,that the property originally belonged to Galo Lichauco was not sucient, withoutmore, to defeat a title acquired by the defendant through the house of Lichauco.

It should be stated that at the hearing the plainti himself did not appearas a witness. Furthermore, no steps were taken, prior to the trial to secure theattendance of either Galo Lichauco or Faustino Lichauco, both of whom wouldhave been most material witnesses for the plaintiff if his contention is correct.

At the close of the trial in the court below, plainti's counsel asked for acontinuance in order to call these witnesses. The court refused to grant acontinuance for such purpose. In this we think the court did not abuse itsdiscretion, and its action in this respect does not constitute reversible error. Theplainti was appraised from the nature of the issue raised that the question to betried was that of ownership and he should have been ready with the witnesses toprove it. He was not entitled to a continuance on the ground of the absence ofthose important witnesses unless he showed that he had used reasonablediligence to secure their attendance. An application for a continuance of cause isaddressed to the sound legal discretion of the trial court, and its ruling thereonwill not be disturbed, unless it clearly appears that such discretion has beenabused, and that by the refusal of the continuance a party has been without hisfault deprived of an opportunity of making his case or defense.

It results that the judgment of the lower court should be armed, withcosts of this instance against the appellant. So ordered.

Arellano, C.J., Johnson, Carson, Araullo, Malcolm, and Avancea, JJ., concur.