Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-4089             January 12, 1909

ARTURO PELAYO, plaintiff-appellant, vs.MARCELO LAURON, ET AL., defendants-appellees.

J.H. Junquera, for appellant.Filemon Sotto, for appellee.

TORRES, J.:

On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint against Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said year, at night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and that upon arrival he was requested by them to render medical assistance to their daughter-in-law who was about to give birth to a child; that therefore, and after consultation with the attending physician, Dr. Escaño, it was found necessary, on account of the difficult birth, to remove the fetus by means of forceps which operation was performed by the plaintiff, who also had to remove the afterbirth, in which services he was occupied until the following morning, and that afterwards, on the same day, he visited the patient several times; that the just and equitable value of the services rendered by him was P500, which the defendants refuse to pay without alleging any good reason therefor; that for said reason he prayed that the judgment be entered in his favor as against the defendants, or any of them, for the sum of P500 and costs, together with any other relief that might be deemed proper.

In answer to the complaint counsel for the defendants denied all of the allegation therein contained and alleged as a special defense, that their daughter-in-law had died in consequence of the said childbirth, and that when she was alive she lived with her husband independently and in a separate house without any relation whatever with them, and that, if on the day when she gave birth she was in the house of the defendants, her stay their was accidental and due to fortuitous circumstances; therefore, he prayed that the defendants be absolved of the complaint with costs against the plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing the defendants, on the 23rd of January, 1907, to amend their answer. In compliance with this order the defendants presented, on the same date, their amended answer, denying each and every one of the allegations contained in the complaint, and requesting that the same be dismissed with costs.

As a result of the evidence adduced by both parties, judgment was entered by the court below on the 5th of April, 1907, whereby the defendants were absolved from the former complaint, on account of the lack of sufficient evidence to establish a right of action against the defendants, with costs against the plaintiff, who excepted to the said judgment and in addition moved for a new trial on the ground that the judgment was contrary to law; the motion was overruled and the plaintiff excepted and in due course presented the corresponding bill of exceptions. The motion of the defendants requesting that the declaration contained in the judgment that the defendants had demanded therefrom, for the reason that, according to the

evidence, no such request had been made, was also denied, and to the decision the defendants excepted.

Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having been sent for by the former, attended a physician and rendered professional services to a daughter-in-law of the said defendants during a difficult and laborious childbirth, in order to decide the claim of the said physician regarding the recovery of his fees, it becomes necessary to decide who is bound to pay the bill, whether the father and mother-in-law of the patient, or the husband of the latter.

According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs.

Obligations arising from law are not presumed. Those expressly determined in the code or in special laws, etc., are the only demandable ones. Obligations arising from contracts have legal force between the contracting parties and must be fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.)

The rendering of medical assistance in case of illness is comprised among the mutual obligations to which the spouses are bound by way of mutual support. (Arts. 142 and 143.)

If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are mutually bound to support each other, there can be no question but that, when either of them by reason of illness should be in need of medical assistance, the other is under the unavoidable obligation to furnish the necessary services of a physician in order that health may be restored, and he or she may be freed from the sickness by which life is jeopardized; the party bound to furnish such support is therefore liable for all expenses, including the fees of the medical expert for his professional services. This liability originates from the above-cited mutual obligation which the law has expressly established between the married couple.

In the face of the above legal precepts it is unquestionable that the person bound to pay the fees due to the plaintiff for the professional services that he rendered to the daughter-in-law of the defendants during her childbirth, is the husband of the patient and not her father and mother- in-law, the defendants herein. The fact that it was not the husband who called the plaintiff and requested his assistance for his wife is no bar to the fulfillment of the said obligation, as the defendants, in view of the imminent danger, to which the life of the patient was at that moment exposed, considered that medical assistance was urgently needed, and the obligation of the husband to furnish his wife in the indispensable services of a physician at such critical moments is specially established by the law, as has been seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that he is entitled to recover his fees, must direct his action against the husband who is under obligation to furnish medical assistance to his lawful wife in such an emergency.

From the foregoing it may readily be understood that it was improper to have brought an action against the defendants simply because they were the parties who called the plaintiff and requested him to assist the patient during her difficult confinement, and also, possibly, because they were her father and mother-in-law and the sickness occurred in their house. The defendants were not, nor are they now, under any obligation by virtue of any legal provision, to pay the fees claimed, nor in consequence of any contract entered into between them and the plaintiff from which such obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain, while recognizing the validity and efficiency of a contract to furnish support wherein a person bound himself to support another who was not his relative, established the rule that the law does impose the obligation to pay for the support of a stranger, but as the liability arose out of a contract, the stipulations of the agreement must be held. (Decision of May 11, 1897.)

Within the meaning of the law, the father and mother-in-law are strangers with respect to the obligation that devolves upon the husband to provide support, among which is the furnishing of medical assistance to his wife at the time of her confinement; and, on the other hand, it does not appear that a contract existed between the defendants and the plaintiff physician, for which reason it is obvious that the former can not be compelled to pay fees which they are under no liability to pay because it does not appear that they consented to bind themselves.

The foregoing suffices to demonstrate that the first and second errors assigned to the judgment below are unfounded, because, if the plaintiff has no right of action against the defendants, it is needless to declare whether or not the use of forceps is a surgical operation.

Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment appealed from should be affirmed with the costs against the appellant. So ordered.

Mapa and Tracey, JJ., concur.Arellano, C.J., and Carson, J., concurs in the result.Willard, J., dissents.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-5671            August 24, 1910

BENITO DE LOS REYES, plaintiff-appellant, vs.VERONICA ALOJADO, defendant-appellee.

Ramon Diokno, for appellant.No appearance for appellee.

TORRES, J.:

On or about January 22, 1905, Veronica Alojado received, as a loan, from Benito de los Reyes that the sum P67 .60, for the purpose of paying a debt she owed to Olimpia Zaballa. It was agreed between Alojado and Reyes that the debtor should remain as a servant in the house and in the service of her creditor, without any renumeration whatever, until she should find some one who would furnish her with the said sum where with to repeat the loan. The defendant, Veronica Alojado, afterwards left the house of the plaintiff, on March 12, 1906, without having paid him her debt, nor did she do so at any subsequent date, notwithstanding his demands. The plaintiff, therefore, on the 15th of march, 1906, filed suit in the court of the justice of the peace of Santa Rosa, La Laguna, against Veronica Alojado to recover the said sum or, in a contrary case, to compel her to return to his service. The trial having been had, the justice of the peace, on April 14, 1906, rendered

judgment whereby he sentenced the defendant to pay to the plaintiff the sum claimed and declared that, in case the debtor should be insolvent, she should be obliged to fulfill the agreement between her and the plaintiff. The costs of the trial were assessed against the defendant.

The defendant appealed from the said judgment to the Court of First Instance to which the plaintiff, after the case had been docketed by the clerk of court, made a motion on May 4, 1906, requesting that the appeal interposed by the defendant be disallowed, with the costs of both instances against her. The grounds alleged in support of this motion. were that the appeal had been filed on the sixth day following that when judgment was rendered in the trial, on April 14th, and that it, therefore, did not come within the period of the five days prescribed by section 76 of the Code of Civil Procedure, as proven by the certificate issued by the justice of the peace of Santa Rosa. The Court of First Instance, however, by order of July 16, 1906, overruled the motion of the plaintiff-appellee, for the reasons therein stated, namely, that the defendant was not notified of the judgment rendered in the case on April 14th of that year until the 16th of the same month, and the appeal having been filed four days later, on the 20th, it could having seen that the five days specified by section 76 of the Code of Civil Procedure had not expired. The plaintiff was advised to reproduce his complaint within ten days, in order that due procedure might he had thereupon.

The plaintiff took exception to the aforementioned order and at the same time reproduced the complaint he had filed in the court of the justice of the peace, in which, after relating to the facts hereinbefore stated, added that the defendant, besides the sum above-mentioned, had also received from the plaintiff, under the same conditions, various small amounts between the dates of January 22, 1905, and March 10, 1906, aggregating altogether P11.97, and that they had not been repaid to him. He therefore asked that judgment be rendered sentencing the defendant to comply with the said contract and to pay to the plaintiff the sums referred to, amounting in all to P79.57, and that until this amount should have been in paid, the defendant should remain gratuitously in the service of plaintiff's household, and that she should pay the costs of the trial.

The defendant, in her written answer of August 15, 1906, to the aforesaid complaint, denied the allegations contained in paragraphs 1 and 2 of the complaint and alleged that, although she had left the plaintiff's service, it was because the latter had paid her no sum whatever for the services she had rendered in his house. The defendant likewise denied the conditions expressed in paragraph 4 of the complaint, averring that the effects purchased, to the amount of P11.97, were in the possession of the plaintiff, who refused to deliver them to her. She therefore asked that she be absolved from the complaint and that the plaintiff be absolved from the complaint the wages due her for the services she had rendered.

The case came to trial on October 19, 1906, and, after the production of testimony by both parties, the judge, on November 21st of the same year, rendered judgment absolving the defendant from the complain, with the costs against the plaintiff, and sentencing the latter to pay to the former the sum of P2.43, the balance found to exist between the defendant's debt of P79.57 and the wages due her by the plaintiff, which amounted to P82. The plaintiff, on the 6th of December, filed a written exception to the judgment aforesaid through the regular channels, and moved for a new trial on the ground that the findings of fact set forth in the judgment were manifestly contrary to the weight of the evidence. This motion was overruled on the 17th of the same month, to which exception was taken by the appellant, who afterwards filed the proper bill of exceptions, which was approved, certified, and forwarded to the clerk of this court.

The present suit, initiated in a justice of the peace court and appealed to the Court of First Instance of La Laguna at a time prior to the enactment of Act No. 1627, which went into effect on July 1, 1907, which limited to two instances the procedure to be observed in verbal actions, concerns the collection of certain sum received as a loan by the defendant from the plaintiff, and of the wages earned by the former for services rendered as a servant in the said plaintiff's house.

Notwithstanding the denial of the defendant, it is a fact clearly proven, as found in the judgment appealed from, that the plaintiff did deliver to Hermenegildo de los Santos the sum of P67.60 to pay a debt was paid by De los Santos with the knowledge and in behalf of the said defendant who, of her free will, entered the service of the plaintiff and promised to pay him as soon as she should find the money wherewith to do so.

The duty to pay the said sum, as well as that of P11.97 delivered to the defendant in small amounts during the time that she was in the plaintiff's house, is unquestionable, inasmuch as it is a positive debt demandable of the defendant by her creditor. (Arts. 1754, 1170, Civil Code.) However, the reason alleged by the plaintiff as a basis for the loan is untenable, to wit, that the defendant was obliged to render service in his house as a servant without remuneration whatever and to remain therein so long as she had not paid her debt, inasmuch as this condition is contrary to law and morality. (Art. 1255, Civil Code.)

Domestic services are always to be remunerated, and no agreement may subsist in law in which it is stipulated that any domestic service shall be absolutely gratuitous, unless it be admitted that slavery may be established in this country through a covenant entered into between the interested parties.

Articles 1583, 1584, and 1585 of the Civil Code prescribe rules governing the hiring of services of domestics servants, the conditions of such hire, the term during which the service may rendered and the wages that accrue to the servant, also the duties of the latter and of the master. The first of the articles cited provides that a hiring for life by either of the contracting parties is void, and, according to the last of three articles just mentioned, besides what is prescribed in the preceding articles with regard to masters and servants, the provisions of special laws and local ordinances shall be observed.

During the regime of the former sovereignty, the police regulations governing domestic service, of the date of September 9, 1848, were in force, article 19 of which it is ordered that all usurious conduct toward the servants and employees of every class is prohibited, and the master who, under pretext of an advance of pay or of having paid the debts or the taxes of his servant, shall have succeeded in retaining the latter in his service at his house, shall be compelled to pay to such servant all arrears due him and any damages he may have occasioned him, and the master shall also be fined.

The aforementioned article 1585 of the Civil Code undoubtedly refers to the provisions of the regulations just cited.

When legal regulations prohibit even a usurious contract and all abuses prejudicial to subordinates and servant, in connection with their salaries and wages, it will be understood at once that the compact whereby service rendered by a domestic servant in the house of any inhabitant of this country is to be gratuitous, is in all respects reprehensible and censurable; and consequently, the contention of the plaintiff, that until the defendant shall have paid him her debt she must serve him in his house gratuitously is absolutely inadmissible.

The trial record discloses no legal reason for the rejection of the findings of fact and of law contained in the judgment appealed from, nor for an allowance of the errors attributed appealed from, nor for an allowance of the errors attributed thereto; on the contrary, the reasons hereinabove stated show the propriety of the said judgment.

For the foregoing reasons, and accepting those set forth in the judgment appealed from, it is proper, in our opinion, to affirm and we hereby affirm the said judgment, with the costs against the appellant.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano, deceased,plaintiffs-appellants, vs.REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said minor, defendants-appellees.

Cruz & Avecilla for appellants.

Marvin R. Hill & Associates for appellees.

 

BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground that his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such denial, reiterating the above grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after thoroughly examining the arguments therein contained, the Court finds the same to be meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF DEFENDANTS THAT -

I

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICTA;

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance of Quezon City. After due trial, he was acquitted on the ground that his act was not criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has favored Us with a copy of the decision of acquittal, presumably because appellants do not dispute that such indeed was the basis stated in the court's decision. And so, when appellants filed their complaint against appellees Reginald and his father, Atty. Marvin Hill, on

account of the death of their son, the appellees filed the motion to dismiss above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case wherein the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill, notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald, though a minor, living with and getting subsistenee from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of the dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation by Justice Bocobo on the nature of culpa aquiliana in relation to culpa criminal or delito and mereculpa or fault, with pertinent citation of decisions of the Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same given act can result in civil liability not only under the Penal Code but also under the Civil Code. Thus, the opinion holds:

The, above case is pertinent because it shows that the same act machinist. come under both the Penal Code and the Civil Code. In that case, the action of the agent killeth unjustified and fraudulent and therefore could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was being sued. (pp. 615-616, 73 Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a proper subject matter either of a criminal action with its consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple negligence and not only punished but also made civilly liable because of his criminal negligence, nevertheless this Court awarded damages in an independent civil action for fault or negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But inasmuch as we are announcing doctrines that have been little understood, in the past, it might not he inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, accordingly to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and damage to property- through any degree of negligence - even the slightest - would have to be Idemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.

Secondary, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise. there would be many instances of unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by, our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harms done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding or private rights because it realtor, an ancient and additional remedy, and for the further reason that an

independent civil action, not depending on the issues, limitations and results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress. (p. 621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein referred to contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would reveal that the thrust of the pronouncements therein is not so limited, but that in fact it actually extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia, provided textually that obligations "which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of the law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana orquasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, 11 not punishable by law," thereby making it clear that the concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of the new code provides:

ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and "culpa extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that which is literal that killeth the intent of the lawmaker should be observed in applying the same. And considering that the

preliminary chapter on human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice, and more in harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or negligencia covers not only acts "not punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not estinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, thatculpa aquiliana includes voluntary and negligent acts which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is, however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate parental authority over the child's person. It shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company." In the instant case, it is not controverted that Reginald, although married, was living with his father and getting subsistence from him at the time of the occurrence in question. Factually, therefore, Reginald was still subservient to and dependent on his father, a situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of presuncion with their offending child under Article 2180 is that is the obligation of the parent to supervise their minor children in order to prevent them from causing damage to third persons. 5 On the other hand, the clear implication of Article 399, in providing that a minor emancipated by marriage may

not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation does not carry with it freedom to enter into transactions or do any act that can give rise to judicial litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial action. Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to see to it that the child, while still a minor, does not give answerable for the borrowings of money and alienation or encumbering of real property which cannot be done by their minor married child without their consent. (Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in accordance with the foregoing opinion. Costs against appellees.

Fernando (Chairman), Antonio, and Martin, JJ., concur.

Concepcion Jr., J, is on leave.

Martin, J, was designated to sit in the Second Division.

Separate Opinions 

AQUINO, J, concurring:

Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when judged by accepted legal standards. "The Idea thus expressed is undoubtedly board enough to include any rational conception of liability for the tortious acts likely to be developed in any society." (Street, J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code and the ruling that "the infant tortfeasor is liable in a civil action to the injured person in the same manner and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs. Tiangco, 74 Phil. 576, 579).

Separate Opinions

AQUINO, J, concurring:

Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when judged by accepted legal standards. "The Idea thus expressed is undoubtedly board enough to include any rational conception of liability for the tortious acts likely to be developed in any society." (Street, J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code and the ruling that "the infant tortfeasor is liable in a civil action to the injured person in the same manner and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs. Tiangco, 74 Phil. 576, 579).

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-9935             February 1, 1915

YU TEK and CO., plaintiff-appellant, vs.BASILIO GONZALES, defendant-appellant.

Beaumont, Tenney and Ferrier for plaintiff. Buencamino and Lontok for defendant.

TRENT, J.:

The basis of this action is a written contract, Exhibit A, the pertinent paragraphs of which follow:

1. That Mr. Basilio Gonzalez hereby acknowledges receipt of the sum of P3,000 Philippine currency from Messrs. Yu Tek and Co., and that in consideration of said sum be obligates himself to deliver to the said Yu Tek and Co., 600 piculs of sugar of the first and second grade, according to the result of the polarization, within the period of three months, beginning on the 1st day of January, 1912, and ending on the 31st day of March of the same year, 1912.

2. That the said Mr. Basilio Gonzales obligates himself to deliver to the said Messrs. Yu Tek and Co., of this city the said 600 piculs of sugar at any place within the said municipality of Santa Rosa which the said Messrs. Yu Tek and Co., or a representative of the same may designate.

3. That in case the said Mr. Basilio Gonzales does not deliver to Messrs. Yu Tek and Co. the 600 piculs of sugar within the period of three months, referred to in the second paragraph of this document, this contract will be rescinded and the said Mr. Basilio Gonzales will then be obligated to return to Messrs. Yu Tek and Co. the P3,000 received and also the sum of P1,200 by way of indemnity for loss and damages.

Plaintiff proved that no sugar had been delivered to it under this contract nor had it been able to recover the P3,000. Plaintiff prayed for judgment for the P3,000 and, in addition, for P1,200 under paragraph 4, supra. Judgment was rendered for P3,000 only, and from this judgment both parties appealed.

The points raised by the defendant will be considered first. He alleges that the court erred in refusing to permit parol evidence showing that the parties intended that the sugar was to be secured from the crop which the defendant raised on his plantation, and that he was unable to fulfill the contract by reason of the almost total failure of his crop. This case appears to be one to which the rule which excludes parol evidence to add to or vary the terms of a written contract is decidedly applicable. There is not the slightest intimation in the contract that the sugar was to be raised by the defendant. Parties are presumed to have reduced to writing all the essential conditions of their contract. While parol evidence is admissible in a variety of ways to explain the meaning of written contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing, unless there has been fraud or mistake. In an early case this court declined to allow parol evidence showing that a party to a written contract was to become a partner in a firm instead of a creditor of the firm. (Pastor vs. Gaspar, 2 Phil. Rep., 592.) Again, in Eveland vs. Eastern Mining Co. (14 Phil. Rep., 509) a contract of employment provided that the plaintiff should receive from the defendant a stipulated salary and expenses. The defendant sought to interpose as a defense to recovery that the payment of the salary was contingent upon the plaintiff's employment redounding to the benefit of the defendant

company. The contract contained no such condition and the court declined to receive parol evidence thereof.

In the case at bar, it is sought to show that the sugar was to be obtained exclusively from the crop raised by the defendant. There is no clause in the written contract which even remotely suggests such a condition. The defendant undertook to deliver a specified quantity of sugar within a specified time. The contract placed no restriction upon the defendant in the matter of obtaining the sugar. He was equally at liberty to purchase it on the market or raise it himself. It may be true that defendant owned a plantation and expected to raise the sugar himself, but he did not limit his obligation to his own crop of sugar. Our conclusion is that the condition which the defendant seeks to add to the contract by parol evidence cannot be considered. The rights of the parties must be determined by the writing itself.

The second contention of the defendant arises from the first. He assumes that the contract was limited to the sugar he might raise upon his own plantation; that the contract represented a perfected sale; and that by failure of his crop he was relieved from complying with his undertaking by loss of the thing due. (Arts. 1452, 1096, and 1182, Civil Code.) This argument is faulty in assuming that there was a perfected sale. Article 1450 defines a perfected sale as follows:

The sale shall be perfected between vendor and vendee and shall be binding on both of them, if they have agreed upon the thing which is the object of the contract and upon the price, even when neither has been delivered.

Article 1452 reads: "The injury to or the profit of the thing sold shall, after the contract has been perfected, be governed by the provisions of articles 1096 and 1182."

This court has consistently held that there is a perfected sale with regard to the "thing" whenever the article of sale has been physically segregated from all other articles Thus, a particular tobacco factory with its contents was held sold under a contract which did not provide for either delivery of the price or of the thing until a future time. McCullough vs. Aenlle and Co. (3 Phil. Rep., 295). Quite similar was the recent case of Barretto vs. Santa Marina(26 Phil. Rep., 200) where specified shares of stock in a tobacco factory were held sold by a contract which deferred delivery of both the price and the stock until the latter had been appraised by an inventory of the entire assets of the company. In Borromeo vs. Franco (5 Phil. Rep., 49) a sale of a specific house was held perfected between the vendor and vendee, although the delivery of the price was withheld until the necessary documents of ownership were prepared by the vendee. In Tan Leonco vs. Go Inqui (8 Phil. Rep., 531) the plaintiff had delivered a quantity of hemp into the warehouse of the defendant. The defendant drew a bill of exchange in the sum of P800, representing the price which had been agreed upon for the hemp thus delivered. Prior to the presentation of the bill for payment, the hemp was destroyed. Whereupon, the defendant suspended payment of the bill. It was held that the hemp having been already delivered, the title had passed and the loss was the vendee's. It is our purpose to distinguish the case at bar from all these cases.

In the case at bar the undertaking of the defendant was to sell to the plaintiff 600 piculs of sugar of the first and second classes. Was this an agreement upon the "thing" which was the object of the contract within the meaning of article 1450, supra? Sugar is one of the staple commodities of this country. For the purpose of sale its bulk is weighed, the customary unit of weight being denominated a "picul." There was no delivery under the contract. Now, if called upon to designate the article sold, it is clear that the defendant could only say that it was "sugar." He

could only use this generic name for the thing sold. There was no "appropriation" of any particular lot of sugar. Neither party could point to any specific quantity of sugar and say: "This is the article which was the subject of our contract." How different is this from the contracts discussed in the cases referred to above! In the McCullough case, for instance, the tobacco factory which the parties dealt with was specifically pointed out and distinguished from all other tobacco factories. So, in the Barretto case, the particular shares of stock which the parties desired to transfer were capable of designation. In the Tan Leonco case, where a quantity of hemp was the subject of the contract, it was shown that that quantity had been deposited in a specific warehouse, and thus set apart and distinguished from all other hemp.

A number of cases have been decided in the State of Louisiana, where the civil law prevails, which confirm our position. Perhaps the latest is Witt Shoe Co. vs. Seegars and Co. (122 La., 145; 47 Sou., 444). In this case a contract was entered into by a traveling salesman for a quantity of shoes, the sales having been made by sample. The court said of this contract:

But it is wholly immaterial, for the purpose of the main question, whether Mitchell was authorized to make a definite contract of sale or not, since the only contract that he was in a position to make was an agreement to sell or an executory contract of sale. He says that plaintiff sends out 375 samples of shoes, and as he was offering to sell by sample shoes, part of which had not been manufactured and the rest of which were incorporated in plaintiff's stock in Lynchburg, Va., it was impossible that he and Seegars and Co. should at that time have agreed upon the specific objects, the title to which was to pass, and hence there could have been no sale. He and Seegars and Co. might have agreed, and did (in effect ) agree, that the identification of the objects and their appropriation to the contract necessary to make a sale should thereafter be made by the plaintiff, acting for itself and for Seegars and Co., and the legend printed in red ink on plaintiff's billheads ("Our responsibility ceases when we take transportation Co's. receipt `In good order'" indicates plaintiff's idea of the moment at which such identification and appropriation would become effective. The question presented was carefully considered in the case of State vs. Shields, et al. (110 La., 547, 34 Sou., 673) (in which it was absolutely necessary that it should be decided), and it was there held that in receiving an order for a quantity of goods, of a kind and at a price agreed on, to be supplied from a general stock, warehoused at another place, the agent receiving the order merely enters into an executory contract for the sale of the goods, which does not divest or transfer the title of any determinate object, and which becomes effective for that purpose only when specific goods are thereafter appropriated to the contract; and, in the absence of a more specific agreement on the subject, that such appropriated takes place only when the goods as ordered are delivered to the public carriers at the place from which they are to be shipped, consigned to the person by whom the order is given, at which time and place, therefore, the sale is perfected and the title passes.

This case and State vs. Shields, referred to in the above quotation are amply illustrative of the position taken by the Louisiana court on the question before us. But we cannot refrain from referring to the case of Larue and Prevost vs. Rugely, Blair and Co. (10 La. Ann., 242) which is summarized by the court itself in the Shields case as follows:

. . . It appears that the defendants had made a contract for the sale, by weight, of a lot of cotton, had received $3,000 on account of the price, and had given an order for its delivery, which had been presented to the

purchaser, and recognized by the press in which the cotton was stored, but that the cotton had been destroyed by fire before it was weighed. It was held that it was still at the risk of the seller, and that the buyer was entitled to recover the $3,000 paid on account of the price.

We conclude that the contract in the case at bar was merely an executory agreement; a promise of sale and not a sale. At there was no perfected sale, it is clear that articles 1452, 1096, and 1182 are not applicable. The defendant having defaulted in his engagement, the plaintiff is entitled to recover the P3,000 which it advanced to the defendant, and this portion of the judgment appealed from must therefore be affirmed.

The plaintiff has appealed from the judgment of the trial court on the ground that it is entitled to recover the additional sum of P1,200 under paragraph 4 of the contract. The court below held that this paragraph was simply a limitation upon the amount of damages which could be recovered and not liquidated damages as contemplated by the law. "It also appears," said the lower court, "that in any event the defendant was prevented from fulfilling the contract by the delivery of the sugar by condition over which he had no control, but these conditions were not sufficient to absolve him from the obligation of returning the money which he received."

The above quoted portion of the trial court's opinion appears to be based upon the proposition that the sugar which was to be delivered by the defendant was that which he expected to obtain from his own hacienda and, as the dry weather destroyed his growing cane, he could not comply with his part of the contract. As we have indicated, this view is erroneous, as, under the contract, the defendant was not limited to his growth crop in order to make the delivery. He agreed to deliver the sugar and nothing is said in the contract about where he was to get it.

We think is a clear case of liquidated damages. The contract plainly states that if the defendant fails to deliver the 600 piculs of sugar within the time agreed on, the contract will be rescinded and he will be obliged to return the P3,000 and pay the sum of P1,200 by way of indemnity for loss and damages. There cannot be the slightest doubt about the meaning of this language or the intention of the parties. There is no room for either interpretation or construction. Under the provisions of article 1255 of the Civil Code contracting parties are free to execute the contracts that they may consider suitable, provided they are not in contravention of law, morals, or public order. In our opinion there is nothing in the contract under consideration which is opposed to any of these principles.

For the foregoing reasons the judgment appealed from is modified by allowing the recovery of P1,200 under paragraph 4 of the contract. As thus modified, the judgment appealed from is affirmed, without costs in this instance.

Arellano, C.J., Torres, Carson and Araullo, JJ., concur. Johnson, J., dissents.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-22359             November 28, 1924

JULIO DE LA ROSA, plaintiff-appellant, vs.THE BANK OF THE PHILIPPINE ISLANDS, defendant-appellant.

Ramon Sotelo for plaintiff-appellant.Araneta and Zaragoza for defendant-appellant.

 

ROMUALDEZ, J.:

          This action was instituted on June 11, 1923, by means of a complaint on the ground that the defendant bank started a contest of designs and plans for the construction of a building, announcing that the prizes would be awarded not later that on November 30, 1921; that the plaintiff took part in said contest, having performed work and incurred expenses for that purpose; that said bank refrained from naming judges and awarding the prizes in accordance with the conditions stipulated. The plaintiff prays that judgment be rendered in his favor for the sum of P30,000 as damages, with interest and the costs.

          The defendant bank answered denying the facts contained in the second and following paragraphs of the complaint.

          After the trial, the court rendered judgment ordering the defendant bank to pay the plaintiff an indemnity of P4,000 and the costs.

          Both parties appealed from this judgment, the plaintiff assigning the following errors as committed by the trial court:

1. In holding that the sum of P4,000 was a just and reasonable indemnity to the plaintiff.

2. In not ordering the defendant bank to pay the P30,000 prayed for in the complaint.

          The defendant bank, in turn, assigned the following errors as committed by the trial court:

1. In holding that the date set for the award of prizes is essential in the contract.

2. In ordering that the sum of P4,000 be paid to the plaintiff.

          The fundamental question on which the plaintiff's action depends is raised in the first assignment of error made by the defendant bank, or, whether or not the date set for the award of the prizes was essential in the contract and, therefore, whether or not the failure to award the prizes on said date was breach of contract on the part of the defendant.

          First of all, we find that due to the fact that the bank started and advertised the said contest, offering prizes under certain conditions, and the plaintiff prepared, by labor and expense, and took part in said contest, the bank is bound to comply with the promise made in the rules and conditions prepared and advertised by it.

          A binding obligation may even originate in advertisements addressed to the general public. (6 R. C. L., 600.)

          It is an elementary principle that where a party publishes an offer to the world, and before it is withdrawn another acts upon it, the party making the offer is bound to perform his promise. This principle is frequently applied in cases of the offer of rewards, . . . (6 R. C. L., 607.)

          What is to be determined is whether or not the defendant bank was in default in not awarding the prizes on November, 30, 1921.

          The plaintiff contends that it was, according to paragraph 2 of article 1100 of the Civil Code, the complete text of which is as follows:

          Persons obliged to deliver or to do something are in default from the moment the creditor demands of them judicially or extrajudicially the fulfillment of their obligation.

          Nevertheless, the demand of the creditor shall not be necessary in order that the default may arise —

1. When the obligator or the law expressly so provides;

2. When by reason of the nature and circumstances of the obligation it shall appear that the designation of the time at which the thing was to be delivered or the service rendered was the principal inducement to the creation of the obligation.

          In reciprocal obligations neither of the obligators shall be in default if the other does not fulfill or does not submit to the fulfillment of that which is incumbent upon him. From the time on the obliges performs his obligation the default begins for the other party.

          And the party plaintiff contends that the said date was the principal inducement because the current cost of concrete buildings at the time was fixed. The fixation of said price cannot be considered as the principal inducement of the contract, but undoubtedly only for the uniformity of the designs to be presented and to secure greater justice in the appreciation of the relative merits of each work submitted.

          Such fixation of price, naturally, was not the principal inducement for the contestants. Neither was it for the bank which could not certain that said price would continue to be current price when it desired to construct the building designed.

          We do not find sufficient reason for considering that the date set for the reward of the prizes was the principal inducement to the creation of the obligation. And, taking into consideration the criterion that must be followed in order to judge whether or not the time for the performance of the obligation is the principal inducement in a given case, we hold that it was not in the instant case.

          The distinguished Manresa explains the matter in the following terms: 1awphi1.net

          These words ("principal inducement" in paragraph 2 of article 1100 of the Civil Code) whose special meaning in connection with this article and the circumstances of each obligation does not permit of their being confused with the permanent general idea, and the distinct clearness of consideration of contracts, may give rise to serious doubts by reason of the breadth of expression, and must be judged in each particular case, it being impossible to give a general rule to explain them. It will for instance, be

unquestionable that the hypothesis implied in this exception is affected when the matter, for instance, is the delivery of things of the rendition of services to be employed in agricultural work, and the time of said work has been designated as the date for the fulfillment of the obligation; it will also exist when, for instance, fruits or any objects are to be delivered which might be used by the creditor in industrial operations having a determinate period for carrying them out and designated for their delivery; and, finally, it will also assist whenever, as in these cases, it appears that the obligation would not have been created for a date other than that fixed.

          The defendant bank cannot be held to have been in default through the mere lapse of time. For this judicial or extrajudicial demand was necessary for the performance of the obligation, and it was not alleged here, nor does it appear that before bringing this action the plaintiff had ever demanded it from the defendant bank in any manner whatsoever. The defendant bank, therefore, was not in default.

          The plaintiff's allegation that the defendant bank abstained from continuing the contest was not proven. On the contrary, it was proved, and so stated in the decision appealed from, that during the trial of this case in the Court of First Instance the designs were on the way to New York where they were sent to a technical committee.

          This committee, according to the new evidence before us presented by the defendant bank and which we now hold admissibe and admit, was appointed by the defendant bank for the study and determination of the designs presented and entitled to the prizes advertised, and which rendered its report and awarded the prizes in accordance with the rules and conditions of the contract, except in regard to the date of such award of prizes which, as we have found, is not essential to the contract in question.

          It appearing that the defendant bank was not in default it is needles to discuss the other questions raised, all depending upon the existence of said default.

          We find the plaintiff has no cause of action in this case,

          The judgment appealed from is reversed and the defendant is entirely absolved from the complaint, without any express finding as to costs. So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand and Johns, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

January 16, 1936

G.R. No. L-43012VENANCIO QUEBLAR, plaintiff-appellant,vs.LEONARDO GARDUÑO and ANICIA MARTINEZ, defendant-appellants.

Sotelo, Sotelo and Ugarte for plaintiff-appellant.Francisco Alfonso for defendants-appellants.

Villareal, J.:

These are cross-appeals taken by the plaintiff Venancio Queblar and by the defendants Leonardo Garduño and Anicia Martinez from the judgment of the Court of First Instance of Cavite, the dispositive part of which reads as follows:

Wherefore, judgment is rendered ordering the defendant Leonardo Garduño to pay to the plaintiff the sum of P7,750 with legal interest thereon from May 4, 1933, when the complaint in this case was filed, until fully paid, with costs, and upon his failure to do so within one hundred twenty (120) days from this date, the court will order the sale of the mortgaged estate so that the proceeds thereof may be applied to the payment of the amount of this judgment.

The plaintiff is absolved from the cross-complaint, and so also is the cross-defendant Amalia Arcega.

In support of their appeal, the plaintiff assigns two alleged errors and the defendants ten as committed by the court a quo in its said judgment, all of which will be discussed in the course of this decision.

The first question to be decided in this appeal, which is raised by the defendants in their brief, is whether or not the true amount obtained by the defendants from Feliciano Basa and Amalia Arcega was P2,100 or P8,400.

The defendant Leonardo Garduño claims that, his brother-in-law Isidro Martinez having proposed to him the purchase of a house on Marquez de Comillas Street, Manila, for the sum of P22,700, hoping that after six months he could resell it for not less than P35,000, he negotiated and obtained a loan of P17,600 from the Postal Savings Bank; that he had a savings of P3,000 and needed only P2,100 to complete the amount necessary to acquire said estate; that he explained to the Basa spouses the prospective transaction and succeeded in obtaining the sum of P2,100 from the latter; that the spouses Basa having known that he was to gain P12,600 in the resale, they asked for one-half of the profits, or P6,300 instead of demanding interest; that as he needed their money, he agreed, and sum of P8,400 was stated in the deed of loan Exhibit A, instead of P2,100; that he acquired the estate but he failed to resell it under the aforesaid advantageous conditions by reason of the death of his brother-in-law Isidro Martinez who was to negotiate the resale; that in view of this failure, Leonardo Garduño requested his creditors, the spouses Feliciano Basa and Amalia Arcega, to reduce his indebtedness but said spouses refused to accede to his request, and nothing more was done as he had to go to Capiz to take charge of the Court of First Instance of said province.

Amalia Arcega denied all the testimony of the defendant Leonardo Garduño and stated that the amount loaned to said defendant and his wife was P8,400 appearing in the deed of loan Exhibit A; that they charged him no interest because the defendant and her husband were very good friends and the former used to take the

latter from his house for a drive in the defendant's automobile OJbTze8X.

It is incomprehensible that the defendant Leonardo Garduño, who was then a Judge of the Court of First Instance, should agree to assume a debt of P8,400 if he had really received only P2,100. With the expected profit of P12,600 from a resale of the estate he wanted to purchase, he could pay even double the sum of P2,100, giving his creditors one hundred per cent profit, without the necessity of paying forty-two monthly installments of P200 to settle his debt. The theory of the defendant-appellant is so strange and unbelievable even in ordinary cases wherein the borrower is not a judge of first instance. Furthermore, if the P6,300 added to the P2,100 were really one-half of the profit which Leonardo Garduño hoped to realize from the resale, and if he agreed to have the sum of P8,400 stated in the deed of loan on condition that the estate could be sold and said profit realized, as said resale and, consequently, the profit had not been realized, the condition disappeared and upon refusal of the spouses Basa to reduce the loan to its true amount of P2,100, he could have resorted to the courts to ask for its reduction to its true limit. As he did not do so, the presumption is that the P8,400 appearing in the deed of loan Exhibit A is the true amount obtained by the defendant Leonardo Garduño from the Basa spouses.

Having arrived at this conclusion, we believe it unnecessary to pass upon the other assignments of alleged error relied upon by the defendant-appellant Leonardo Garduño.

Turning our attention to the alleged errors assigned by the plaintiff-appellant who acquired the rights of the spouses Feliciano Basa and Amalia Arcega to the loan contained in the deed Exhibit A, we have in the first place the question whether the payment of interest by reason of default should begin from the month of March, 1926, when the should begin from the month of March, 1926, when the defendant-appellant failed to pay the stipulated installments, or from May 4, 1933, when the complaint in this case was filed.

Although it is really stipulated in the deed Exhibit A that failure to pay any of the monthly installments fixed therein would mature the entire obligation, however, it is not stated herein that the mortgagors would thereafter be in default, as required by paragraph 1 of article 1100 of the Civil Code. There being no such statement of default, the herein defendant-appellant was in default only when judicially required to comply with the obligation through the filing of the corresponding complaint on May 4, 1933. (Art. 1100, Civil Code; Compañia General de Tabacos vs. Araza, 7 Phil. 455.)

The court a quo, therefore, did not err in adjudicating interest to the plaintiff from May 4, 1933 6Lxtk.

With respect to the amount claimed for attorney's fees, it has been stated in the contract Exhibit A that the mortgage constituted was "also to secure the payment of another reasonable amount as attorney's fees in case of litigation and of the costs and the corresponding expenses." Therefore, there is a stipulation for the payment of reasonable attorney's fees in case of litigation. Taking into consideration the amount involved in the litigation and the nature of the latter, we are of the opinion

that five per cent of the debts is a reasonable rate for the payment of attorney's fees in the case at bar.

For the foregoing considerations, we are of the opinion and so hold that although a contract of loan stipulates that failure to pay any of the installments therein stipulated would mature the entire obligation, without expressly stating that the debtor shall thereafter be in default, there is no justification to so hold and to adjudicate interest from the date of said non-fulfillment, but from the time a judicial or extrajudicial demand for payment is made of him (art. 1100, Civil Code; Compañia General de Tabacos vs. Araza, supra) Xn0XI.

Wherefore, with the sole modification that five per cent of the unpaid debt of P7,750 is also awarded to the plaintiff-appellant, the appealed judgment is affirmed in all other respects, with costs to the defendant-appellant. So ordered D2IEcaoBH.

Malcolm, Imperial, Butte, and Goddard, JJ., concur. .

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-42999             October 30, 1936

ACME FILMS, INC., Plaintiff-Appellant, vs. THEATERS SUPPLY CORPORATION, Defendant-Appellant.

 

VILLA-REAL, J.: chanrobles virtual law library

These are two appeals taken, the one by the plaintiff company Acme Films, Inc., and the other by the defendant company Theaters Supply Corporation, from the judgment of the Court of First Instance of Manila, the dispositive part of which reads as follows:

Wherefore, denying the defendant's counterclaim, judgment is rendered sentencing said defendant to pay to the plaintiff the sum of P50 corresponding to the promissory notes for the months of February and March, 1934, with interest thereon at 8 per cent per annum plus 10 per cent as attorney's fees without costs. So ordered.

In support of its appeal, the plaintiff-appellant Acme Films, Inc., assigns the following alleged errors as committed by the court a quo in its said judgment, to wit:

1. In finding that the consideration of the promissory notes issued upon herein was plaintiff's obligation to supply defendant cinematographic films, and in failing to find that such notes have absolutely no bearing relation or connection with plaintiff's undertaking to supply defendant with such films.chanroblesvirtualawlibrary chanrobles virtual law library

2. In holding that the cancellation of plaintiff's agreement to supply defendant with the said cinematographic films effected the cancellation of such of said promissory notes as might fall due after April, 1934.chanroblesvirtualawlibrary chanrobles virtual law library

3. In failing to award judgment in favor of plaintiff and against defendant in accordance with the prayer of plaintiff's complaint, and in denying plaintiff's motion for new trial and motion for reconsideration.

The defendant-appellant Theaters Supply Corporation, in turn, assigns in support of its appeal the following alleged errors as committed by the court a quo in its said judgment, to wit:

1. The lower court erred in not ordering the plaintiff to pay the defendant the sum of P550 representing the damages suffered by the defendant by reason of plaintiff's arbitrary breach of a contract, in manifest disregard of the provisions of article 1101 of the Civil Code.chanroblesvirtualawlibrary chanrobles virtual law library

2. The lower court erred in holding that Bosque's testimony in with the damages is vague and general, and that it is well settled that an affirmation of this kind relative to damages suffered, being a mere conclusion, proves nothing.chanroblesvirtualawlibrary chanrobles virtual law library

3. The lower court erred in denying the defendant-appellant's motion for a new trial.

 

This case originated in a complaint filed by the plaintiff Acme Films, Inc., against the defendant Theaters Supply Corporation, praying: (a) That the defendant company be ordered to pay to it the sum of P175; (b) that the defendant company pay the sum of P17.50 as attorney's fees, and (c) that it be granted any other just and equitable remedy.chanroblesvirtualawlibrary chanrobles virtual law library

The defendant company, answering the complaint, denies each and every allegation contained therein and as a cross-complaint prays that the plaintiff company be ordered to pay it the sum of P550 by way of damages for breach of contract, plus legal interest thereon from the date of the filing of the complaint, until fully paid, with costs to said plaintiff.chanroblesvirtualawlibrary chanrobles virtual law library

The following facts, which have not been denied by the defendant company, were established by the plaintiff company during the trial, to wit: chanrobles virtual law library

On December 29, 1933, the defendant-appellant executed and delivered to the plaintiff-appellant eight promissory notes for the sum of P25 each, payable on successive dates, with interest at 8 per cent per annum on the unpaid balance of P175, seven of which promissory notes (Exhibit A to E, inclusive) had been unpaid. Said promissory notes are of the same tenor and contain the same conditions, except the date of maturity, as follows:

MANILA, P. I.,           Dec. 29, 1933 chanrobles virtual law library

NOTE NO. 2 chanrobles virtual law library

P25 chanrobles virtual law library

On or before February 28, 1934, for value received, I promise to pay to the order of Acme Films, Inc., at its main office in the City of Manila, P. I. the sum of pesos twenty-five only (P25) Philippine Cy. with interest at the rate of eight per centum (8%) per annum on the unpaid balance of P175. This is one of a series of eight (8) promissory notes for an aggregate total of P200 (two hundred pesos) all executed on this date. In case of non-payment of this note of maturity all succeeding notes shall forthwith become due and payable at the election of the payee, in which case, we also promise to pay to said Acme Films, Inc. an additional sum equivalent to ten per centum (10%) of the whole amount then remaining unpaid for and as attorney's fees in addition to costs provided by law.

THEATERS SUPPLY CORPORATION          By G. G. BOSQUE          

The defendant-appellant paid the promissory note upon maturity thereof in January, 1934; but did not which matured on February 8, 1934, nor the corresponding interest thereon, the payment of each of the remaining promissory notes having ipso facto matured, as per agreement.chanroblesvirtualawlibrary chanrobles virtual law library

In support of its cross-complaint the defendant-appellant attempted to prove that it entered into "Booking Contracts" with the plaintiff-appellant (Exhibits 1 to 5, inclusive); that the plaintiff company failed to supply the following films: on April 4, 1934, the films "Night Rider", All Talking Comedy, Novelty & Cartoon and Pathe News; on April 5, 1934, the films "Monster Walks", "Whispering Shadow", All Talking Novelty and Pathe News; on April 11, 1934, the films "Skyway", All Talking Comedy, Novelty & Cartoon and Pathe News; on April 12, 1934, the films "Crashing Broadway", Whispering Shadow" and Novelty & News; on April 18, 1934, the films "Mounted Fury", All Talking Comedy, Cartoon & Novelty and Pathe News; on April 19, 1934, the films "The Phantom", Whispering Shadow", All Talking Comedy and Cartoon & Pathe News; on April 25, 1934, the films "Son of Oklahoma", All Talking Comedy, All Talking Novelty and Cartoon & Pathe News; on March 27, 1934, the films "Phantom Broadcast", "Whispering Shadow 1" and Pathe News; on March 28, 1934, the films "Phantom Broadcast", "Whispering Shadow 1" and Paths News; on the same date, March 28, 1934, the films "Blind Adventure", All Talking Comedy, Cartoon and Pathe News; and on March 29, 1934, the films "Lucky Devils", "Whispering Shadow" and Pathe News; that among the films to be shown which the plaintiff failed to supply, there were serials: that such serials had to be advertised in advance, said advertisements consisting not only in the printing of programs but also in the exhibition of posters which paraded around the poblacion where the films were to be shown, and in the employment of bands of music to go through the different streets of the poblacion announcing the showing of said films; that by reason of the plaintiff's failure to supply the films which it was bound to supply under the Booking Contracts (Exhibit 5), the defendant company was forced to take films from the Universal Pictures Corporation, paying therefor five per cent more than what it paid to the plaintiff company under the contracts in question; that on March 26, 1935, the plaintiff company wrote a letter (Exhibit 6) to the defendant company notifying the latter that all subsequent booking contracts were cancelled; that the defendant on said date wrote a letter (Exhibit 7) stating that while it was willing to discontinue negotiating with the appellant, it should be understood that the cancellation became effective on April 1, 1934, and that any serial already commenced must continue to be shown until the end; that notwithstanding this letter the plaintiff company failed to supply the films stated in the cross-complaint thereby causing damages to the defendant in the sum of P400 to P500.chanroblesvirtualawlibrary chanrobles virtual law library

The first question to be decided in the appeal of the plaintiff company, Acme Films, Inc., which is raised in the first assignment of alleged error, is whether or not the court a quo erred in arriving at the conclusion that the cause or consideration of the promissory notes which are the subject matter of the complaint was the plaintiff company's obligation to supply the defendant with cinematographic films.chanroblesvirtualawlibrary chanrobles virtual law library

A simple reading of the promissory notes in question shows that they were issued for value received, and that upon maturity of each note unpaid balance of P175. If under the promissory notes in question the defendant company bound itself to partially pay an amount already received, plus interest at eight per cent on the unpaid balance, the obligation to supply cinematographic films could not have been the cause or consideration of the execution thereof, but a pre-existent debt. Furthermore, as the booking contract became effective only on February 24, 1934, which supply began on said date and on March 3 and 20, 1934, respectively, there could be no unpaid balance of P175, because the supply of films in question was based on a commission on the proceeds of their exhibition on the dates above-stated, which commission was undoubtedly payable after each exhibition.chanroblesvirtualawlibrary chanrobles virtual law library

We therefore hold that the first assignment of alleged error is well founded.chanroblesvirtualawlibrary chanrobles virtual law library

The second question to be decided is that raised by the plaintiff-appellant in its second assignment of alleged error consisting in whether or not the court a quo erred in holding that the cancellation of said plaintiff-appellant's agreement to supply the defendant-appellant with the cinematographic films in question produced ipso facto the cancellation of the promissory notes the payment of which would mature after the month of April, 1934.chanroblesvirtualawlibrary chanrobles virtual law library

If, as already stated, the obligation contracted by the plaintiff-appellant to supply the defendant-appellant with cinematographic films was not and could not be the cause or consideration of the issuance of said promissory notes, it is logical to conclude not result in the cancellation of the promissory notes the maturity of which would take place after said cancellation, there being no relation of cause and effect between both contracts.chanroblesvirtualawlibrary chanrobles virtual law library

With respect to the defendant-appellant's appeal, the first question to be decided is that raised in its first assignment of alleged error, consisting in whether or not the court a quo erred, in not ordering the plaintiff to pay to the defendant the sum of P550 as damages suffered by the latter for the arbitrary breach of contract by the plaintiff.chanroblesvirtualawlibrary chanrobles virtual law library

It is not denied that the plaintiff company failed to supply the defendant with the cinematographic films which were the subject matter of the contracts entered into on March 20, 1934 (Exhibits 1 and 2), and two films under the contract of March 24, 1934 (Exhibit 3), one of said films being a serial entitled "Whispering Shadow". Guillermo Garcia Bosque testified that because the plaintiff company had failed to supply said films, the defendant had to resort to the Universal Pictures Corporation and ask for films to replace those which said plaintiff had failed to supply under the contract, having had to pay therefore five per cent more than for those films contracted with said plaintiff Acme Films, Inc., and that the total cost thereof, including the printing of programs, posters paraded through the streets with bands of music to announce the showing of the films which the plaintiff company failed to supply, amount to from P400 to P500. The plaintiff company did not submit evidence to rebut the testimony of said witness and the fact that the estimate inadmissible. It

was incumbent upon the plaintiff company to submit evidence in rebuttal, or at least ascertain the amount of the different items in cross-examination. There being no evidence to the contrary, it is logical to admit that the defendant company spent at least the sum of P400.chanroblesvirtualawlibrary chanrobles virtual law library

Inasmuch as the plaintiff company had failed to comply with a part of its booking contract, and as the defendant company had suffered damages as a result thereof, the former is liable to indemnify the damages caused to the latter, in accordance with the provisions of article 1101 of the Civil Code.chanroblesvirtualawlibrary chanrobles virtual law library

In view of the foregoing considerations, we are of the opinion and so hold: (1) That the defendant company is bound to pay to the plaintiff company the sum of P175 representing the total amount of the seven matured and unpaid promissory notes, plus interest at eight per cent per annum on said sum of P175 from February 28, 1934, until fully paid, and an additional sum equivalent to ten per cent of said sum of P175 as attorney's fees; and (2) that the plaintiff company, in turn, is bound to, pay to the defendant company the sum of P400, as damages suffered by the latter for breach by the former of its booking contract, plus interest thereon at six per cent per annum from July 29, 1934, the date of the filing of the cross-complaint, until fully paid.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the appealed judgment is reversed and the defendant company Theaters Supply Corporation is ordered to pay the sum of P175 to the plaintiff company, plus the corresponding interest thereon at eight per cent per annum from February 28, 1934, until fully paid, and a sum equivalent to ten per cent of said sum of P175 as attorney's fees; and the plaintiff company Acme Films, Inc., in turn, is ordered to, pay the sum of P400 to the defendant company Theaters Supply Corporation, plus legal interest thereon at six per cent per annum from the date of the filing of the cross-complaint, until fully paid, without special pronouncement as to costs. So ordered.chanroblesvirtualawlibrarychanrobles virtual law library

Avanceña, C. J., Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

February 2, 1924

G.R. No. L-19495HONORIO LASAM, ET AL., plaintiffs-appellants,vs.FRANK SMITH, JR., defendant-appellant.

Palma and Leuterio for plaintiffs-appellants.Mariano Alisangco for defendant-appellant.

Ostrand, J.:

The plaintiff are husband and wife and this action is brought to recover damages in the sum of P20,000 for physical injuries sustained by them in an automobile accident. The trial court rendered a judgment in their favor for the sum of P1,254.10, with legal interest from the date of the judgment. Both the plaintiffs and the defendant appeal, the former maintaining that the damages awarded are insufficient while the latter denies all liability for any damages whatever.

It appears from the evidence that on February 27, 1918, the defendant was the owner of a public garage in the town of San Fernando, La Union, and engaged in the business of carrying passengers for hire from the one point to another in the Province of La Union and the surrounding provinces. On the date mentioned, he undertook to convey the plaintiffs from San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving San Fernando, the automobile was operated by a licensed chauffeur, but after having reached the town of San Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive the car. Bueno held no driver's license, but had some experience in driving, and with the exception of some slight engine trouble while passing through the town of Luna, the car functioned well until after the crossing of the Abra River in Tagudin, when, according to the testimony of the witnesses for the plaintiffs, defects developed in the steering gear so as to make accurate steering impossible, and after zigzagging for a distance of about half a kilometer, the car left the road and went down a steep embankment.

The defendant, in his testimony, maintains that there was no defect in the steering gear, neither before nor after the accident, and expresses the opinion that the swaying or zigzagging of the car must have been due to its having been driven at an excessive rate of speed. This may possibly be true, but it is, from our point of view, immaterial whether the accident was caused by negligence on the part of the defendant's employees, or whether it was due to defects in the automobile; the result would be practically the same in either event.

In going over the bank of the road, the automobile was overturned and the plaintiffs pinned down under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib , but his wife, Joaquina Sanchez, received serious injuries, among which was a compound fracture of one of the bones in her left wrist. She also appears to have suffered a nervous breakdown from which she had not fully recovered at the time of the trial.

The complaint in the case was filed about a year and a half after the occurrence above related. It alleges, among other things, that the accident was due to defects in the automobile as well as to the incompetence and negligence of the chauffeur, and the case appears to have been tried largely upon the theory that it sounds in tort and that the liability of the defendant is governed by article 1903 of the Civil Code. The trial court held, however, that the cause of action rests on the defendant's breach of the contract of carriage and that, consequently, articles 1101-1107 of the Civil Code, and not article 1903, are applicable. The court further found that the breach of the contract was not due to fortuitous events and that, therefore, the defendant was liable in damages.

In our opinion, the conclusions of the court below are entirely correct. That upon the facts stated the defendant's liability, if any, is contractual, is well settled by previous decisions of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the distinction between extra-contractual liability and contractual liability has been so ably and exhaustively discussed in various other cases, that nothing further need here be said upon that subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila Railroad Co. vs. Compania Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co.,40 Phil., 706.) It is sufficient to reiterate that the source of the defendant's legal liability is the contract of carriage; that by entering into that contract he bound himself to carry the plaintiffs safely and securely to their destination; and that having failed to do so he is liable in damages unless he shows that the failure to fulfill his obligation was due to causes mentioned in article 1105 of the Civil Code, which reads as follows:

No one shall be liable for events which could not be foreseen or which, even if foreseen, were inevitable, with the exception of the cases in which the law expressly provides otherwise and those in which the obligation itself imposes such liability.

This brings us to the principal question in the case:

What is meant by "events which cannot be foreseen and which, having been foreseen, are inevitable?" The Spanish authorities regard the language employed as an effort to define the term caso fortuito and hold that the two expressions are synonymous. (Manresa, Comentarios al Codigo Civil Español, vol. 8, pp. 88 et seq.; Scævola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso fortuito as "occasion que a case por aventura de que non se puede ante ver. E son estos, derrivamientos de casas e fuego que se enciende a so ora, e quebrantamiento de navio, fuerca de ladrones. . . . (An event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers. . . .)"

Escriche defines caso fortuito as "an unexpected event or act of God which could either be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections, destructions, destruction of buildings by unforseen accidents and other occurrences of a similar nature."

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española says: "In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor." (5 Enciclopedia Juridica Española, 309.)

As will be seen, these authorities agree that some extraordinary circumstance independent of the will of the obligor, or of his employees, is an essential element of a caso fortuito. Turning to the present case, it is at once apparent that this element is lacking. It is not suggested that the accident in question was due to an act of God or to adverse road conditions which could not have been foreseen. As far as the records shows, the accident was caused either by defects in the automobile or else through the negligence of its driver. That is not a caso fortuito.

We agree with counsel that neither under the American nor Spanish law is a carrier of passengers an absolute insurer against the risks of travel from which the passenger may protect himself by exercising ordinary care and diligence. The case of Alba vs. Sociedad Anonima de Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in support of his contentions, affords a good illustration of the application of this principle. In that case Alba, a passenger on a street car, was standing on the platform of the car while it was in motion. The car rounded a curve causing Alba to lose his balance and fall off the platform, sustaining severe injuries. In an action brought by him to recover damages, the supreme court of Spain held that inasmuch as the car at the time of the accident was travelling at a moderate rate of speed and there was no infraction of the regulations, and the plaintiff was exposed to no greater danger than that inherent in that particular mode of travel, the plaintiff could not recover, especially so since he should have been on his guard against a contingency as natural as that of losing his balance to a greater or less extent when the car rounded the curve.

But such is not the present case; here the passengers had no means of avoiding the danger or escaping the injury.

The plaintiffs maintain that the evidence clearly establishes that they are entitled to damages in the sum of P7,832.80 instead of P1,254.10 as found by the trial court, and their assignments of error relate to this point only.

There can be no doubt that the expenses incurred by the plaintiffs as a result of the accident greatly exceeded the amount of the damages awarded. But bearing in mind that in determining the extent of the liability for losses or damages resulting from negligence in the fulfillment of a contractual obligation, the courts have "a discretionary power to moderate the liability according to the circumstances" (De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706; art. 1103, Civil Code), we do not think that the evidence is such as to justify us in interfering with the discretion of the court below in this respect. As pointed out by that court in its well-reasoned and well-considered decision, by far the greater part of the damages claimed by the plaintiffs resulted from the fracture of a bone in the left wrist of Joaquina Sanchez and from her objections to having a decaying splinter of the bone removed by a surgical operation. As a consequence of her refusal to submit such an operation, a series of infections ensued and which required constant and expensive medical treatment for several years. We agree with the court below that the defendant should not be charged with these expenses 0MKSZSqpA.

For the reasons stated, the judgment appealed from is affirmed, without costs in this instance. So ordered.

Araullo, C.J., Street, Malcolm, Johns and Romualdez, JJ., concur. .

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

July 24, 1915

G.R. No. L-9421L.L. HILL, plaintiff-appellant,vs.MAXIMINA CH. VELOSO, ET AL., defendants-appellees.Martin M. Levering for appellant.P.E. del Rosario for appellee.

Arellano, J.:

On December 30, 1910, Maximina Ch. Veloso, the wife of Manuel M. Tio Cuana, and Domingo Franco, the first named with the consent of her husband, executed and signed a document of the following tenor:

For value of the goods we have received in La Cooperativa Filipina we promise to pay jointly and severally to Michael & Co., S. en C., or its order, in the municipality of Cebu, the sum of six thousand three hundred and nineteen pesos and thirty-three centavos (6,319.33), in the manner hereinafter set forth, with interest on such part of said principal as may remain unpaid at the end of each month at the rate of one and a half per cent per month until the principal shall have been completely paid. The said sum of six thousand three hundred and nineteen pesos and thirty-three centavos (P6,319.33) shall be paid at the rate of five hundred pesos (P500) monthly on or before the 15th day of each month, and the interest shall also be paid monthly. In case said monthly payments are not made in the manner that we have promised hereinabove, then all the unpaid principal shall become immediately demandable, at the option of the owner of this promissory note. In case suit be brought for the collection of the amount of this promissory note or any part thereof, we bind ourselves jointly and severally to pay an additional and reasonable sum as fees of the plaintiff's attorney in said suit.

(Sgd.) MAXIMINA CH. VELOSO.

DOMINGO FRANCO.I consent to my wife, Maximina Ch. Veloso, signing the foregoing document.

(SGD.) MANUEL M. TIO CUANA.

Cebu, P.I., December 30, 1910.

This promissory note was indorsed to L.L. Hill on January 12, 1911. The following indorsement appears on the back:

JANUARY 12, 1911.Pay to the order of L.L. Hill.E. MICHAEL, S. en C .By E. MICHAEL, Gerente.

Two thousand pesos have been paid on this note — that is, four installments of P500 each on February 10, March 16, April 16, and May 22, 1911, respectively.

On July 5, 1911, L.L. Hill brought the present suit to recover the following sums: P4,319.33, with interest thereon at the rate of 1 ½ per cent per month from July 1, 1911, until said sum should be entirely paid; P473.18 as interest on the principal of said note from December 30 to June 30, 1911; P1,000 as fees for plaintiff's attorney in this suit and for the costs of the proceedings against the defendants, Maximina Ch. Veloso and Manuel Martinez Tio Cuana.

Defendants, in answer to the complaint, alleged as a special defense that "about the middle of December, 1910, the deceased Domingo Franco, who was their son-in-law, had stated to them that attorney Martin M. Levering, in his capacity as guardian of the minor children of Potenciano Chiong Velos, had suggested to the said Franco the necessity of the defendants' executing in Levering's behalf a document in which it should be set forth that the defendants would pay to Levering, in his capacity of guardian of said minors, the sum of P8,000 which defendants had borrowed from Damasa Ricablanca, the former guardian of these minors, in view of the fact that the court had removed this latter from office and appointed said attorney in her stead; that, by reason of this statement by Levering to Franco, and having, as they did have, confidence in said decedent, Domingo Franco, on account of his being a member of their family, defendants were willing to execute in behalf of the said attorney, Levering, a document that should be set forth the sum owed by them to the wards represented by Levering; that, consequently, said Domingo Franco had defendants said paper would be filled out inside his office by recording on the sheet the obligation contracted by them in behalf of said wards; that defendants did in fact sign the said paper for the purpose indicated, and, up to the death of said Domingo Franco, which occurred in May of the present year (1911) confided in his good faith and in the belief that the paper which they had signed had been duly filled out with the obligation contracted by them in behalf of said wards and had been delivered to attorney Martin M. Levering as guardian of said minors, but that after the said Franco died they learned that at no time had he ever delivered to said attorney any document whatever signed by defendants; that they believed that the paper which said deceased had them sign for the alleged purpose aforementioned was filled out with a totally different obligation from that which they had been made to believe would be set forth therein. Defendants therefore alleged that, as they had had no transaction whatever with Michael & Co., S. en C., nor with the plaintiff, and as they had not received any kind of goods whatever from said firm, and it appearing that

they, together with the deceased Domingo Franco, seemingly signed the promissory note, plaintiff's Exhibit A, all these reasons induced them to believe, and they so alleged, that the said deceased, without their consent, utilized the aforementioned paper for the execution of said promissory note. Defendants further alleged that at no time did they intended to execute any promissory note in behalf of Michael & Co., S. en C.; that it was false that Michael & Co. delivered goods to them in La Cooperativa Filipina; and that, of their own free will, they did not execute any document whatever in behalf of the creditor mentioned in said promissory note."

Evidence was adduced by the parties, after which the Court of First Instance of Cebu, who tried the case, rendered judgment absolving defendants from the complaint, with their costs.

Plaintiff appealed, and his appeal having been heard and the evidence reviewed, it appears:

That the trial court sustained defendants' special defense in all its parts, making it the principal ground for his judgment, to wit, that defendants' signatures on the promissory note were obtained by means of the fraud alleged in their answer to the complaint and that defendants at the trial explicitly acknowledged their signatures. The defendant Maximina Ch. Veloso testified that her son-in-law, Domingo Franco, had her sign the document in blank; that when she did so contained no writing; and that if he made her sign it, and if she did sign it, it was because Franco had told her that Levering compelled her to execute a document in his behalf "for the minor children of Damasa Ricablanca," her sister-in-law and widow of Potenciano Ch. Veloso, who had deposited with her P8,000 belonging to her minor children to whom witness acknowledged herself to be indebted in the said sum of P8,000.

Assuming this to be true, by the recognition of the signature of this promissory note, the document became completely effective, unless there be proof of some exception permitted by law. Were there such an exception, the maker was the person obliged to proved it and, in the present case, that person is the defendant; and the latter has presented absolutely no proof of the mistake by reason of which she says she signed the promissory note, nor of the fraud or deceit she charges to her son-in-law, Domingo Franco, now deceased. Far from it, something else was shown to have been proven by her own testimony and acts. On her being cross-questioned as to whether it was true that, as she says, she signed the promissory note in blank thinking that she was signing an obligation in behalf of Levering as guardian of the estate belonging to the minor children of her deceased brother, she replied that it was, that she had been told by the said Domingo Franco that it was such an obligation, and so she was willing to sign it, because "it was really a debt."

From this testimony of Maximina Ch. Veloso and from her written answer, it appears that in December, 1910, she signed in blank the promissory note now in question; that she signed it in the belief that the obligation which it would contain would be that of acknowledging her debt of P8,000 in favor of the minor children of Damasa Ricablanca and of paying it to Levering, who at that time was the guardian of then said minors; that for this reason, in her written answer of August 4, 1911, she set up that special defense of error and deceit, when she saw that the obligation contained in the document signed in blank was a promissory note made out to Michael & Co.

for P6,319 and some centavos NqNBZkT.

It appears that Levering, as guardian of the minor children of Damasa Ricablanca, commenced proceedings on November 1, 1911, to recover the P8,000 owed by the defendant Maximina Ch. Veloso, and that the latter, on January 15, 1912, answered the complaint stating that her debt was owing to Damasa Ricablanca herself in her own right, but not her capacity of guardian of her minor children. (Record, pp. 34 and 36.)

If she said this in 1912, it cannot be maintained that in 1910, on being required to recognize and pay the debt of P8,000, she consented to sign a document in blank recognizing the debt and binding herself to pay it to Levering as the then guardian of the minor children of Damasa Ricablanca. What would have been natural and logical is that then, as in 1912, she would have refused to execute said obligation in writing in favor of Levering, as she did reject it on January 18, 1912, since she did not consider herself to be in debt to the minors, but to their mother.

This being shown by the record, the allegation of that other fact, entirely contradicted at trial by the same person, cannot be considered as proof of the error and deceit alleged in this action.

It is likewise proven in this case that during the trial, after the defendant Veloso had acknowledged the debt owing the minors represented by Levering, she was cross-questioned as to why she had denied it in 1912 when she was sued for its payment; she replied that possibly demand had been made upon her for payment, but that she did not remember, and on being cross-questioned as to whether she remembered that judgment had been rendered against her, she replied that she did and that she had been informed of it by her own attorney AZuqDf8C.

This is the only thing in the record which may be opposed to the truth and presumption of truly offered by the contents of a document freely and willingly signed yEEnKlFF1.

This is not proof, much less preponderant proof, that can outweigh the contents of the promissory note that is the basis of the complaint; on the contrary, it is conclusive proof of the falsity of the other cause of debt alleged in the special defense.

But even granted that no such proofs existed in the case; even granted that it was proven at trial that Domingo Franco acted in the manner stated in the answer and in the defendant Maximina Ch. Veloso's testimony, yet even so, the deceit and error alleged could not annul the consent of the contracting parties to the promissory note, nor exempt this defendant from the obligation incurred. The deceit, in order that it may annul the consent, must be that which the law defines as a cause. "There is deceit when by words or insidious machinations on the part of one of the contracting parties, the other is induced to execute a contract which without them he would not have made." (Civ. Code, art. 1269.)

Domingo Franco is not one of the contracting parties who may have deceitfully induced the other contracting party, Michael & Co., to execute the contract. The one

and the other contracting parties, to whom the law refers, are the active and the passive subjects of the obligation, the party of the first part and the part of the second part who execute the contract. The active subject and party of the first part of the promissory note in question is Michael & Co., and the passive subject and the party of the second part are Maximina Ch. Veloso and Domingo Franco; two, or be they more, who are one single subject, one single party. Domingo Franco is not one contracting party with regard to Maximina Ch. Veloso as the other contracting party. They both are but one single contracting party in contractual relation with, or as against, Michael & Co. Domingo Franco, like any other person who might have been able to to induce Maximina Ch. Veloso to act in the manner she is said to have done, under the influence of deceit, would be, for this purpose, but a third person. There would then not be deceit on the part of the one of the contracting parties exercised upon the other contracting party, but deceit practiced by a third person.

"In accordance with the text of the Code, which coincides with that of other foreign codes, deceit by a third person does not in general annul consent, and in support of this opinion it is alleged that, in such a case, the two contracting parties act in good faith, (on the hypothesis set forth, Michael & Co., and Maximina Ch. Veloso); that there is no reason for making one of the parties suffer for the consequences of the act of a third person in whom the other contracting party may have reposed an imprudent confidence. Notwithstanding these reasons, the deceit caused by a third person may produce effects and, in some cases, bring about the nullification of the contract. This will happen when the third person causes the deceit in connivance with, or at least with the knowledge, without protest, of the favored contracting party: the most probable suppositions, in which the latter cannot be considered exempt from the responsibility. Moreover, and even without the attendance of that circumstance, the deceit caused by a third person might lead the contracting party upon whom it was practiced into error, and as such, though it be not deceit, may vitiate consent. In any case, this deceit may give rise to more or less extensive and serious responsibility on the part of the third person, and a corresponding right of action for the contracting party prejudiced" (in the present hypothesis, Maximina Ch. Veloso against Domingo Franco). (8 Manresa, 659, 2d Ed.)

With respect to the true cause of the debt or cause of the contract, it is not necessary to set forth any consideration whatever, because, as the deceit and error alleged cannot be estimated, it is of no importance whether the La Cooperativa Filipina, whose goods were the cause of the debt, exclusively belonged to one or the other of the debtors, the obligation of debt and payment being joint. But if any consideration with respect to this error alleged on appeal were necessary, it would be that the evidence against the finding contained in the judgment appealed from is very conclusive. Isabelo Alburo, a witness for the defense and manager of La Cooperativa Filipina, testified that the goods furnished by Michael were received in the store La Cooperativa Filipina; that he signed the bills for collection; that the bill-heads bore the printed legend "La Cooperativa Filipina de Maximina Ch. Veloso;" and that all the forms, books and accounts were printed in the same manner. The municipal treasurer exhibited the registry books and testified that the license for that establishment was issued in the name of Maximina Ch. Veloso, and the appellee herself testified that she was aware that it was conducted in her name.

The third assignment of error should be considered like the foregoing two. The

statement is in all respects inadmissible that the promissory note in question is absolutely null and void, not merely annulable, and that is such cases the Supreme Court has decided that no rights can be acquired by a person who obtains a promissory note by indorsement, in support of which averment the decisions in the cases of Palma vs. Cañizares (1 Phil. Rep., 602) and Lichauco vs. Martinez (6 Phil. Rep., 594) are cited ESx0gaPl.

In neither of these decisions is such a doctrine set up The syllabus in the first case says: "A promissory note which represents a gambling debt and is therefore unenforceable in the hands of the payee, obtains no greater validity in the hands of an assignee in the absence of showing that the debtor has consented to and approved of the assignment."

And that of the second case:" Money lost at a prohibited game cannot be recovered, though the loser deliver to the winner his note for the amount lost.

An assignee of such note who took it after it became due has no more rights than assignor.

Both of these decisions deal with a promissory note for a sum of money lost at a prohibited game; and, in the case at bar, we have not to do with a promissory note of this nature. "The promissory note in question — says the trial court — was indorsed to L.L. Hill on January 12, 1911. The note had then already become due, although the date specified in the note for the payment of the first amount of P500 of the principal had not yet arrived." (Bill of ex., p. 13.).

If the date for the payment of the first amount of P500 had not yet arrived, it follows that the note had not yet fallen due, because it could have no other due date than that of the first installment, and this fact was finally recognized by the court in another order wherein he says: "It appears that the court erred in that part of his order where he held that the promissory note in question fell due on the date of its conveyance by indorsement to L.L. Hill." (Bill of ex., p. 16.)

So that, neither by reason of the indorsement, nor by reason of its object, is the promissory note null, or annulable, and the aforecited decisions are absolutely inapplicable to the case at bar.

The absolution of the defendants from the complaint being unsupported by any grounds of fact or law, it devolves upon this court to set forth the conclusions of fact and law on which this decision rests.

The defendants' signatures on the promissory note herein concerned were identified at the trial.

These signatures were written and the obligation was contracted, without error or deceit.

There is no evidence whatever that Michael & Co. threatened to bring suit against Domingo Franco unless Maximina Ch. Veloso signed with Domingo Franco a promissory note for the said sum zkfBeF.

The facts constituting the consideration for the contract contained in the promissory note are fully proven (though proof was not necessary, as a presumption of law, not destroyed by any evidence whatever to the contrary, lies in its favor), because it has been fully proven that the goods, the consideration for the debt, were received in the La Cooperativa Filipina. It was likely fully proven that the La Cooperativa Filipina belonged to the defendant, with or without Domingo Franco having a share therein, and that the goods came from Michael & Co.

There is nothing to support the finding that the sale of the goods by Michael & Co. was a sale to Domingo Franco only. There is no proof whatever that Levering, as the guardian of the minor children of Potenciano Veloso, had required Maximina Veloso in December, 1910, to sign a document recognizing her debt to said minors, nor that Domingo Franco acted, for this purpose, as the defendants' attorney and adviser. With regard to the defendants' debt of P8,000 to the minor children of Potenciano Veloso and Damasa Ricablanca, the instrument attesting this debt, executed by the defendants in favor of Damasa Ricablanca was who then the guardian of said minors, had already existed since June 30, 1907, and appears on page 34 of the record.

The facts alleged in the special defense can not in any wise be held to be proven, as above demonstrated in our examination of the parol evidence adduced in this case, and, besides, because of this other consideration: If, as stated in the special defense, "Domingo Franco, who was a son-in-law of the defendants, had told them that attorney Martin M. Levering, in his capacity as guardian of the minor children of Potenciano Ch. Veloso, had suggested to Franco the necessity of the defendants' executing an instrument setting out that they would pay to the said Attorney Martin M. Levering, in his capacity of guardian of said minors, the sum of P8,000 which defendants had borrowed from Damasa Ricablanca, the former guardian of said minors;" and if, as held by the trial court in his judgment, Domingo Franco had then acted as defendants' attorney and adviser, there is nothing in the record to show why Domingo Franco had to sign such an instrument attesting a debt to the minors, as the principal obligor, when the creditor required no one but the defendants to sign such a document; nor was it shown why, on such a supposition, Manuel Martinez did not have to sign the instrument except merely to authorize his wife, by his permission as her husband, to sign it, when in the special defense it is admitted that the document in question contains an acknowledgment of the debt of P8,000 "which the defendants had borrowed from Damasa Ricablanca."

The alleged error Cannot be sustained. There is no other signed document than the promissory note presented with the intention, on its being signed, of securing the payment of the goods sold to the La Cooperativa Filipina.

That is what the document says, and its contents must be accepted, pursuant to section 297 of Act No. 190 (Code of Civil Procedure).

The remainder of the principal owing, P4,319.33, must be paid. Payment must also be made of the covenanted interest at the rate of 1½ per cent per month from July 1, 1911, until the whole of the said sum be completely paid; and, finally the P1,000 stipulated in the contract as fees for the plaintiff's attorney in this case must be paid

gabD.

With respect to the P473.18, interest on the principal of said promissory note from December 30, 1910, to June 30, 1911, this amount cannot be recovered, because, in conformity with article 1110 of the Civil Code, a receipt from the creditor for the principal, that contains no stipulation regarding interest, extinguishes the obligation of the debtor with regard thereot; and the receipts issued by the International Bank show that no reservation whatever was made with respect to the interest on the P2,000 paid on account.

The judgment appealed from is reversed. Twenty days after notification of this decision, let judgment be entered against the defendant Maximina Ch. Veloso ordering the payment of P4,319, with the stipulated interest thereon at the rate of 1½ per cent per month from July 1, 1911, and of P1,000 as attorney's fees, with costs of first instance, without special finding as to the costs of this second instance, it is so ordered.

Torres, Johnson, Carson, Trent, and Araullo, JJ., concur. .