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[JOSE FLORENDO v. EUSTAQUIO P. FOZ](http://lawyerly.ph/juris/view/cc3e?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 6565, Oct 24, 1911 ]

JOSE FLORENDO v. EUSTAQUIO P. FOZ +

DECISION

20 Phil. 389

[ G. R. No. 6565, October 24, 1911 ]

JOSE FLORENDO, PLAINTIFF AND APPELLEE, VS. EUSTAQUIO P. FOZ, DEFENDANT AND APPELLANT.

D E C I S I O N

ARELLANO, C.J.:

On May 11, 1909, Eustaquio P. Foz executed in Manila a contract,  ratified before a  notary, and substantially of the following purport: 

"I, D. Eustaquio Foz  *  *   *,  in consideration of the sum of six  thousand pesos (P6,000) Philippine currency, hereby sell,  cede, and convey forever and perpetually to Sr. Jose Florendo, my house and camarin of strong materials, together with the lots on which they are erected, the boundaries of which are as follows:  (and the boundaries are expressed). 

"Of the six thousand pesos, I have already received from the said Sr.  Jose Florendo, two thousand pesos  (P2,000), and the said party shall pay me the remaining four thousand in Vigan when I go there at any time during this month or next month. 

"In case of my being unable to  go to Vigan, I authorize the said Jose Florendo to pay my debt to the church at that place, as well also (that is, I authorize him) to obtain the title papers  of the house that is the subject matter of this sale, and the said Florendo shall send the remainder to me here in Manila, 

"Record is also made in this instrument that the rents of the said properties may be collected by me only up to and including the month of June; after such period, I shall have no further right to said rents and Senor Florendo may then begin to collect them."

This contract was signed by the party who executed it, by his wife and two witnesses, and was, by the first mentioned, ratified  before a notary.

Eustaquio  Foz went to  Vigan,  and on  June 23 of the same year, Jose Florendo,  accompanied by a  notary, tendered to the former the P4,000, the rest of the price of the sale; but Foz refused to receive them, saying that the true price of the sale, recorded in  another instrument  held by Florendo, was P10,000, and that on the second or third day after the  first  instrument had  been executed,  Florendo, while still  in Manila, repudiated the contract.  These facts were recorded by the notary in a notarial certificate.   (Exhibit C,  of the plaintiff.)

For the foregoing reasons, Florendo instituted the present suit against Foz, wherein  he asked  that the  defendant be sentenced:  (a) To comply with the contract of absolute purchase and  sale,  by delivering to  the plaintiff the property sold; (b)  to pay to the plaintiff the rents of the entire realty  from July 1, 1909, until the judgment should be fulfilled, together with the legal interest on the amount of such rents, and that the court fix the sum which the defendant  must pay for his  use  of a  part of the property; (c)  that, out of the P4,000 deposited by the plaintiff in the municipal treasury of Vigan, Ilocos Sur, payment be made to the Roman Catholic Apostolic Church, in the said pueblo of Vigan, "Obispado de Nueva Segovia," of the mortgage credit due that it  holds  against the defendant, and that the  remainder left after paying all the debts found to be owing by the judgment to be rendered, be delivered, to the said  defendant; and, (d) to pay the costs of the trial.

The  defendant, in his answer to the complaint, alleged that it  was false that he  had sold his property for  the price of P6,000; that, if he signed the deed of sale, he was deceived in so doing,  as he had heard,  or believed  that he had heard,  when it was previously read  to him,  that the amount stated therein was P10,000, which was the true sum agreed upon between  himself and the plaintiff as the price of the property.  The defendant therefore asked that the deed of sale be declared to  be false, null and void, and, in counter-complaint, prayed that the plaintiff be compelled to return to him the ownership title of the property, which was in the  plaintiff's possession.

The Court of First Instance  of Ilocos Sur, after hearing the evidence adduced by both sides, rendered judgment in conformity with the plaintiff's petition, except with regard to fixing the amount which the defendant should pay as rent for the personal use of a part of the house, and disallowed the defendant's counter-complaint.

The latter appealed from that judgment, and the hearing on the appeal discloses the following facts: 

  1. That the evidence presented by  the  defendant was rather intended to prove that the year before he had been offered the price of P8,000 for his property and that  the latter  was worth  more than P6,000, in rebuttal of which the plaintiff showed the price for which the property had been acquired and its  assessed valuation, neither of which exceeded  P6,000.   
  2.  
  3. That, as regards  the  defendant's special  defense to the effect that the deed of sale was read to  him before he signed it and that he heard or believed that he heard that the price  stipulated in the deed  was P10,000, not only was no evidence whatever presented, but also no offer  nor attempt was made to introduce any.   
  4.  
  5. That the court ordered the deposit of the P4,000, as the remainder of the payment of the price and which in the complaint was said to  be deposited in the municipal treasury of Vigan, to be made in the provincial treasury, from which  ruling the defendant took an exception, alleging that it was  another  defense of  his,  in support of his refusal to deliver the property sold, that the rest of the price thereof had not been properly  deposited, either in May or in June, 1909.
  6.  
  7. That the defendant ratified at the trial  his answer in the notarial certificate  of June 23,  1909 (Exhibit C of  the plaintiff),  that  is, his  averment that another instrument had been executed in which the  true price of P10,000 was stipulated; but this averment was not repeated nor proved during the whole trial.
  8.  
  9. That in the appellant's brief in this instance, on page 14 thereof, the following statements appear:
       
      "The plaintiff, on his reading this instrument to the  defendant, made the latter believe that the amount stipulated therein as the price of the contract was P10,000, and in this belief the defendant signed that notarial document.  That fact having been proved by the defendant's testimony, which was neither contradicted nor rebutted, is that document to prevail over all the proofs adduced?"
         
        None of these statements can be accepted as correct.   It was not proved, nor was  it attempted to  be proved, that the instrument, before being signed by the appellant, was read to him by another person; nor that such other person was the appellee himself; nor  that any person read one thing  for another, as being  what  was stipulated  in the instrument.  For these reasons it was  the conclusion of the trial court that neither the deceit alleged by the defendant to have been employed by the plaintiff in the execution  of the  contract, nor  the falsity  of the instrument executed, was proved.  (B. of eM p. 12.) 

Consequently, the instrument of contract is valid and effective.  From the validity and force  of the  contract  is derived the obligation on  the part of the vendor to deliver the thing sold.

Pursuant to article 1466 of the Civil Code, the vendor shall not  be bound to deliver the thing sold, if  the vendee should not have paid the price, or if a period for the payment has not been  fixed in the contract.  If  in  the  contract a period has  been fixed for the payment, the vendor must deliver the thing sold.  In the contract in question, a period was  fixed  for the payment:

The said party (the vendee) - says the vendor - shall pay me the remaining four thousand in Vigan when I go there at any time during this month or next month.   In  case of my being unable to go to  Vigan,   *  *   *   the .said Florendo shall  send the remainder  (after  paying the vendor's debt to the Church of Vigan) to me here in Manila.

In accordance with the first of the  said quoted clauses, the period for payment is when the vendor shall have arrived at Vigan; and  if he does not arrive at Vigan, such period is, according to the second clause,  indefinite,  the  vendee merely taking it upon himself to send the rest to Manila, after the month of June, 1909, should the vendor not arrive at Vigan.

The provisions of the said article 1466, contain a rule and an exception: the rule is that the thing shall not be delivered, unless the price be paid; and  the exception is that  the thing must be delivered, though the price be not first paid, if a time for such payment has been fixed in the contract. Hence, all the discussion between the contending parties, with respect to  whether the deposit of the P4,000, a part of the price, was or was not made, or was duly or unduly made, is entirely impertinent: the conveyance of the thing sold does not depend on the payment of the price, in this case of exception contained in article  1466 of the Civil Code.

"If  this  period was  fixed, the vendor, notwithstanding that such period has not terminated, nor, consequently, that he has not collected the price, is obliged to deliver  the thing sold."  (10 Manresa, Commentaries on the Civil Code, 130.)

There was no need, therefore, of assent on the part of the plaintiff to  pay the P4,000, the remainder of the price, in order to oblige the defendant unconditionally to deliver the property sold.  With still more reason should the defendant be compelled to effect the material delivery of the property, since, after the lapse of the  period for the delivery of the price, the plaintiff hastened to pay it and, on account of the defendant's refusal to receive it, duly deposited  it, in order to avoid the consequences that might issue from delinquency in the payment  of a sum entrusted to him for a fixed period.

It is the material delivery of  the property  sold which the defendant must make in  compliance with the  contract, inasmuch as the formal delivery de jure was made, according to the provisions of article 1462, 2d paragraph, of the same code:

"When the  sale should be made by means of  a public instrument, the execution thereof shall be equivalent to the delivery of  the thing which  is the object of the  contract, if in said instrument the contrary does not appear or may be clearly inferred."

As the contrary does not appear nor is to  be inferred from the public instrument executed by the defendant, its execution was really a formal or symbolical delivery of the property sold and authorized the plaintiff to  use the title of  ownership as proof that he was  thenceforth the owner of  the  property.

The judgment appealed from is affirmed in all its parts, with the costs of this instance against the appellant.

Torres, Mapa, Johnson, Carson, Moreland, and Trent, JJ., concur.


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