236

[No. L-3756. June 30, 1952]

SAGRADA ORDEN DE PREDICADORES DEL SANTISIMO ROSARIO DE FILIPINAS,
plaintiff and appellee, vs. NATIONAL COCONUT CORPORATION, defendant and
appellant
1,UNITED STATES ALIEN PROPERTY CUSTODIAN; RIGHTS AND POWERS OVER ENEMY
PROPERTY.The Alien Property Custodian of the United States had the control and
administration of enemy property, not as a successor to the interests of the enemy
alien owner, but by express provision of law (Trading With The Enemy Act, 40 Stat.,
44; 50 U. S. C. A., 189). Neither was he a trustee of the pre-war owner of the
property, but a trustee of the United States Government (50 U. .S. C. A., 282-283),
in its own right, to the exclusion of and against the claim or title of the enemy
owner, with power to dispose of the property by sale or otherwise, as though he
were the absolute owner.
2.ID.; ID.; RENTALS FOR USE AND OCCUPATION OF ENEMY PROPERTY.A party
allowed by the United States Alien Property Custodian to occupy and use the enemy
property is not liable to pay rentals therefor to the pre-war owner prior to the
annulment of the enemy's title to the property even when the enemy acquired it by
duress, because there was no privity (of contract or obligation) between the Alien
Property Custodian and the enemy owner, the former's title being based, by legal
provision, on the right to seize enemy property. The occupant's obligation to pay
rentals, like any other obligation, must arise from law, contract, quasi-contract,
crime, or negligence (article 1089, Spanish Civil Code). If occupant took possession
of the property with the permission of the Alien Property Custodian, without any
express or implied agreement between them that rentals would be paid for the use
and occupation of the enemy property, none may be recovered by the pre-war
owner. As to the rentals collected by said occupant from its lessee, the same should
accrue to it, as a possessor in good faith.
3.JUDGMENTS; RESERVATION THEREIN OF A SEPARATE ACTION.Even if in the
judgment annulling the sale, reservation is made of a new action for such rentals,
the reservation may not be considered as vesting a new right; if no right to claim for
rentals existed at the time of the reservation, no rights can arise or accrue from
such reservation alone.
APPEAL from a judgment of the Court of First Instance of Manila. Castelo, J.
The facts are stated in the opinion of the Court.
First Assistant Corporate Counsel Federico C. Alikpala and Assistant Attorney
Augusto Kalaw for appellant.
Ramirez & Ortigas for appellee.
LABRADOR, J.:

237

This is an action to recover the possession of a piece of real property (land with
warehouses) situated in Pandacan, Manila, and the rentals for its occupation and
use. The land belongs to the plaintiff, in whose name the title was registered before
the war. On January 4, 1943, during the Japanese military occupation, the land was
acquired by a Japanese corporation by the name of Taiwan Tekkosho for the sum of
P140,000, and thereupon title thereto issued in its name (transfer certificate of title
No. 64330, Register of Deeds, Manila). After liberation, more specifically on April 4,
1946, the Alien Property Custodian of the United States of America took possession,
control, and custody thereof under section 12 of the Trading with the Enemy Act, 40
Stat., 411, for the reason that it belonged to an enemy national. During the year
1946 the property was occupied by the Copra Export Management Company under
a custodianship agreement with the United States Alien Property Custodian (Exhibit
G), and when it vacated the property it was occupied by the defendant herein. The
Philippine Government made representations with the Office of the United States
Alien Property Custodian for the use of the property by the Government (see
Exhibits 2, 2-A, 2-B, and 1), On March 31, 1947, the defendant was authorized to
repair the warehouse on the land, and actually spent thereon for repairs the sum of
P26,898.27. In 1948 defendant leased one-third of the warehouse to one Dioscoro
Sarile at a monthly rental of P500, which was later raised to P1,000 a month. Sarile
did not pay the rents, so action was brought against him. It is not shown, however, if
the judgment was ever executed.
Plaintiff made claim to the property before the Alien Property Custodian of the
United States, but as this was denied, it brought an action in court (Court of First
Instance of Manila, civil case No. 5007, entitled "La Sagrada Orden de Predicadores
de la Provincia del Santisimo Rosario de Filipinas," plaintiff vs. Philippine Alien
Property Administrator, defendant, Republic of the Philippines, intervenor) to annul
the sale of the property to the Taiwan Tekkosho, and recover its possession. The
Republic of the Philippines was allowed to intervene in the action. The case did not
come for trial because the parties presented a joint petition in which it is claimed by
plaintiff that the sale in favor of the Taiwan Tekkosho was null and void because it
was executed under threats, duress, and intimidation, and it was agreed that the
title issued in the name of the Taiwan Tekkosho be cancelled and the original title of
plaintiff re-issued; that the claims, rights, title, and interest of the Alien Property
Custodian be cancelled and held for naught; that the occupant National Coconut
Corporation has until February 28, 1949, to recover its equipment from the property
and vacate the premises; that plaintiff, upon entry of judgment, pay to the
Philippine Alien Property Administration the sum of P140,000; and that the
Philippine Alien Property Administration be free from responsibility or liability for any
act of the National Coconut Corporation, etc. Pursuant to the agreement the court
rendered judgment releasing the defendant and the intervenor from liability, but

238
reserving to the plaintiff the right to recover from the National Coconut Corporation
reasonable rentals for the use and occupation of the premises. (Exhibit A-1.)
The present action is to recover the reasonable rentals from August, 1946, the date
when the defendant began to occupy the premises, to the date it vacated it. The
defendant does not contest its liability for the rentals at the rate of P3,000 per
month from February 28, 1949 (the date specified in the judgment in civil case No.
5007), but resists the claim therefor prior to this date. It interposes the defense that
it occupied the property in good faith, under no obligation whatsoever to pay rentals
for the use and occupation of the warehouse. Judgment was rendered for the
plaintiff to recover from the defendant the sum of P3,000 a month, as reasonable
rentals, from August, 1946, to the date the defendant vacates the premises. The
judgment declares that plaintiff has always been the owner, as the sale to the
Japanese purchaser was void ab initio; that the Alien Property Administration never
acquired any right to the property, but that it held the same in trust until the
determination as to whether or not the owner is an enemy citizen. The trial court
further declares that defendant can not claim any better rights than its predecessor,
the Alien Property Administrator, and that as defendant has used the property and
had subleased portion thereof, it must pay reasonable rentals for its occupation.
Against this judgment this appeal has been interposed, the following assignment of
error having been made on defendant-appellant's behalf:
"The trial court erred in holding the defendant liable for rentals or compensation for
the use and occupation of the property from the middle of August, 1946, to
December 14, 1948.
"1. Want of "ownership rights" of the Philippine Alien Property Administrator did not
render illegal or invalidate its grant to the defendant of the free use of the property.
"2. The decision of the Court of First Instance of Manila declaring the sale by the
plaintiff to the Japanese purchaser null and void ab initio and that the plaintiff was
and has remained as the legal owner of the property, without legal interruption, is
not conclusive.
"3. Reservation to the plaintiff of the right to recover from the defendant corporation
not binding on the latter;
"4. Use of the property for commercial purposes in itself alone does not justify
payment of rentals.
"5. Defendant's possession was in good faith.
"6. Defendant's possession in the nature of usufruct."
In reply, plaintiff-appellee's counsel contends that the Philippine Alien Property
Administration (PAPA) was a mere administrator of the owner (who ultimately was

239
decided to be plaintiff), and that as defendant has used it for commercial purposes
and has leased portion of it, it should be responsible therefor to the owner, who had
been deprived of the possession for so many years. (Appellee's brief, pp. 20, 23.)
We can not understand how the trial court, from the mere fact that plaintiff-appellee
was the owner of the property and the defendant-appellant the occupant, which
used it for its own benefit but by the express permission of the Alien Property
Custodian of the United States, so easily jumped to the conclusion that the
occupant is liable for the value of such use and occupation. If defendant-appellant is
liable at all, its obligations must arise from any of the four sources of obigations,
namely, law, contract or quasi-contract, crime, or negligence. (Article 1089, Spanish
Civil Code.) Defendantappellant is not guilty of any offense at all, because it entered
the premises and occupied it with the permission of the entity which had the legal
control and administration thereof, the Alien Property Administration. Neither was
there any negligence on its part. There was also no privity (of contract or obligation)
between the Alien Property Custodian and the Taiwan Tekkosho, which had secured
the possession of the property from the plaintiffappellee by the use of duress, such
that the Alien Property Custodian or its permittee (defendant-appellant) may be
held responsible for the supposed illega ity of the occupation of the property by the
said Taiwan Tekkosho. The Alien Property Administration had the control and
administration of the property not as successor to the interests of the enemy holder
of the title, the Taiwan Tekkosho, but by express provision of law (Trading with the
Enemy Act of the United States, 40 Stat, 411; 50 U. S. C. A., 189). Neither is it a
trustee of the former owner, the plaintiff-appellee herein, but a trustee of the
Government of the United States (32 Op. Atty. Gen. 249; 50 U. S, C. A., 283), in its
own right, to the exclusion of, and against the claim or title of, the enemy owner.
(Youghiogheny ci Ohio Coal Co. vs. Lasevich [1920], 179 N. W., 855; 171 Wis., 347;
50 U. S. C. A., 282-283.) From August, 1946, when defendant-appellant took
possession, to the date of the judgment on February 28, 1948, the Alien Property
Administration had the absolute control of the property as trustee of the
Government of the United States, with power to dispose of it by sale or otherwise,
as though it were the absolute owner. (U. S. vs. Chemical Foundation [C. C. A. Del.
1925], 5 F. [2d], 191; 50 U. S. C, A., 283.) Therefore, even if defendant-appellant
were liable to the Alien Property Administration for rentals, these would not accrue
to the benefit of the plaintiff-appellee, the old owner, but to the United States
Government.
But there is another ground why the claim for rentals can not be made against
defendant-appellant. There was no express agreement between the Alien Property
Custodian and the defendant-appellant for the latter to pay rentals on the property.
The existence of an implied agreement to that effect is contrary to the
circumstances. The Copra Export Management Company, which preceded the
defendant-appellant in the possession and use of the property, does not appear to
have paid rentals therefor, as it occupied it by what the parties denominated a

240
"custodianship agreement," and there is no provision therein for the payment of
rentals or of any compensation for its custody and or occupation and use. The
Trading with the Enemy Act, as originally enacted, was purely a measure of
conservation, hence it is very unlikely that rentals were demanded for the use of the
property. When the National Coconut Corporation succeeded the Copra Export
Management Company in the possession and use of the property, it must have been
also free from payment of rentals, especially as it was a Government corporation,
and steps were then being taken by the Philippine Government to secure the
property for the National Coconut Corporation. So that the circumstances do not
justify the finding that there was an implied agreement that the defendant-appellant
was to pay for the use and occupation of the premises at all.
The above considerations show that plaintiff-appellee's claim for rentals before it
obtained the judgment annulling the sale to the Taiwan Tekkosho may not be
predicated on any negligence or offense of the defendantappellant, or on any
contract, express or implied, because the Alien Property Administration was neither
a trustee of plaintiff-appellee, nor a privy to the obligations of the Taiwan Tekkosho,
its title being based by legal provision on the seizure of enemy property. We have
also tried in vain to find a law or provision thereof, or any principle in quasi
contracts or equity, upon which the claim can be supported. On the contrary, as
defendant-appellant entered into possession without any expectation of liability for
such use and occupation, it is only fair and just that it may not be held liable
therefor. And as to the rents it collected from its lessee, the same should accrue to
it as a possessor in good f aith, as this Court has already expressly held. (Resolution,
National Coconut Corporation vs. Geronimo, 83 Phil. 467.)
Lastly, the reservation of this action may not be con-sidered as vesting a new right;
if no right to claim for rentals existed at the time of the reservation, no rights can
arise or accrue from such reservation alone.
Wherefore, that part of the judgment appealed from, which sentences defendantappellant to pay rentals from August, 1946, to February 28, 1949, is hereby
reversed. In all other respects the judgment is affirmed. Costs of this appeal shall be
against the plaintiff-appellee.
Pars, C. J., Pablo, Bengzon, Padilla, Tuazon, Montemayor, and Bautista Angelo,
JJ., concur.
Part of the judgment sentencing appellant to pay rentals from Aug. 1946 to Feb. 28,
1949 is reversed and affirmed in all other respects. [Sagrada Orden de Predicadores
del Santisimo Rosario de Filipinas vs. National Coconut Corporation, 91 Phil.
503(1952)]

241

G.R. No. 74781. March 13, 1991.*

FRANCISCO S. PE AND ANITA MONASTERIO PE, petitioners, vs. HON. INTERMEDIATE
APPELLATE COURT, DOMINGA SY, LILIA ONG, JOSE JUAN TONG, LILY LIM, ONG SEE FU
alias ONG TO AN AND LUISA YU, respondents.
Courts; Judgment; Waiver of defenses and objections; Exceptions; Courts of justice
have no jurisdiction to decide a question not in issue.In the recent case of General
Insurance and Surety Corporation v. Union Insurance Society of Canton (G.R. Nos.
30475-76, 22 November 1989, 179 SCRA 530), the Court citing Section 2, Rule 9 of
the Revised Rules of Court ruled that defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived, the only exceptions
recognized under the rule being: (1) a failure to state a cause of action, and (2) lack
of jurisdiction. In contradiction to respondents contention, We rule that novation
was never pleaded in the respondents answer, hence, such defense is deemed
waived. Time and again, We stress that courts of justice have no jurisdiction or
power to decide a question not in issue. (Viajar v. Court of Appeals, G.R. No. 77294,
12 December 1988, 168 SCRA 405, 411 citing Lim Toco v. Go Fay, 80 Phil. 166) A
judgment going outside the issues and purporting to adjudicate something upon
which the parties were not heard is not merely irregular, but extrajudicial and
invalid. (Viajar v. Court of Appeals, supra citing Salvante v. Cruz, 88 Phil. 236-244,
Lazo v. Republic Surety and Insurance Co., Inc., 31 SCRA 329, 334).
Same; Same; Same; Contracts, law between contracting parties.Contracts are
respected as the law between the contracting parties. The parties may establish
such stipulations, clauses, terms and conditions as they may want to include. As
long as such agreements are not contrary to law, morals, good customs, public
policy or public order they shall have the force of law between them. (Mercantile
Insurance Co., Inc. v. Ysmael Jr. and Co., Inc. G.R. No. 43862, 13 January 1989, 169
SCRA 66).
PETITION for certiorari to review the decision of the then Intermediate Appellate
Court.

The facts are stated in the opinion of the Court.

Resurreccion S. Salvilla for petitioners.
MEDIALDEA, J.:

242
This is a petition for review on certiorari seeking the reversal of the decision of the
respondent Intermediate Appellate Court (now Court of Appeals) dated December
27, 1985 which affirmed the decision of the Court of First Instance of Iloilo City,
Branch I dismissing the case; and its resolution dated May 7, 1986 denying the
motion for reconsideration for lack of merit.
The antecedent facts giving rise to the controversy at bar are as follows:
Plaintiff spouses Francisco and Anita Monasterio Pe were the registered owners of
several parcels of land, designated as Lots Nos. 40, 41, 42, 45 and 47 of the
Cadastral Survey of Iloilo and
two buildings on Lot 40 and 41, all situated in the City of Iloilo, Philippines.
The above-mentioned parcels of land were mortgaged with different banking
institutions. Lots Nos. 40 and 41 were mortgaged to the Philippine Veterans Bank for
P351,162.59; Lots Nos. 42 and 45 were mortgaged to the Development Bank of the
Philippines for P189,322.49; and Lot No. 47 to Philippine Commercial and Industrial
Bank for P57,000.00. Also mortgaged with the same bank were a tractor and one
set of Ransomed Model II, Offset Discharrow Category II-18-24 diameter for
P118,242.00.
Sometime in September 1976, the Pe spouses and the spouses Ong Su Fu alias Ong
To An and Luisa Yu negotiated for the purchase of the five (5) parcels of land.
On September 14, 1976, Ong Su Fu issued in favor of Francisco Pe a check for
P30,000.00 as earnest money and as partial payment for the price of the lots.
Thereafter, on September 20, 1976 the Pe spouses as First Party, executed a
contract to sell, but it was in favor of defendant Domingo Sy (son-in-law of Ong Su
Fu). Said contract was prepared by the Ong Su Fus counsel. The pertinent portions
of the said contract are quoted hereunder:
WITNESSETH

That the FIRST PARTY is the registered owner of five (5) parcels of land, more
particularly described as follows:
xxx

xxx

xxx.

That the FIRST PARTY intends to sell the above-described parcels of land and the
SECOND PARTY is likewise desirous of buying the same for the total consideration of
SIX HUNDRED TWENTY THOUSAND (P620,000.00) PESOS, Philippine Currency, under
the following terms and conditions, to with (sic):

243
1. That the SECOND PARTY shall pay to the FIRST PARTY the sum of THIRTY
THOUSAND (P30,000.00) PESOS, upon the signing of the agreement which shall
serve as partial payment of the total consideration, receipt of which is hereby
acknowledged by the FIRST PARTY as shown by his signature appearing
hereinbelow;
2. That since the above-described parcels of land are presently incumbered (sic)
with different banking institutions it is the agreement of the parties that as soon as
the incumbrance (sic) appertaining to the respective lots is paid and the mortgage
herein released, the
FIRST PARTY shall execute the corresponding final deed of sale for said lots in favor
of the SECOND PARTY, it being understood that the SECOND PARTY shall procure the
payment of the said bank obligation which payment shall be considered payment of
that particular lots; that this procedure shall be followed with respect to the other
lots herein involved;
x x x

xxx

x x x. (Roll of Exhibits, pp. 1 and 2)

Thereafter, Domingo Sy transferred his rights under the contract to sell to Jose Juan
Tong with respect to Lots Nos. 40 and 41.
On October 4, 1976, after payment by Jose Juan Tong of the Pe spouses account
with the Philippine Veterans Bank in the amount of P351,162.59, pursuant to the
contract, the latter executed in favor of the former a deed of sale covering Lots Nos.
40 and 41 and the two buildings thereon.
However, the deed of sale stated that the consideration was P95,000.00. The titles
to the two parcels of land were subsequently transferred to spouses Jose Juan Tong
and Lily Lim.
On the same date, the Pe spouses executed in favor of Domingo Sy a deed of sale
over Lots Nos. 42 and 45, after payment by the latter of the formers account with
the Development Bank of the Philippines in the amount of P189,322.49.
Again, the deed of sale stated a different consideration which is P30,000.00 and
thereafter, the respective titles were issued in favor of Domingo Sy and his spouse.
Consequently, a contract to sell and a corresponding deed of sale covering Lot No.
47 were prepared for Dionisio Sy (brother of Domingo Sy), but the deed did not
materialize as the formers offer of P49,454.92, as payment for the remaining parcel
of land (Lot No. 47) was rejected by the Pe spouses, the latter insisting on the full
payment of their obligation with the Philippine Commercial and Industrial Bank
(PCIB) in the amount of P383,615.97 and P620,000.00 as the alleged consideration
stipulated in the Contract to Sell.

244
Thereafter, the Pe spouses failed to settle their account with the PCIB, hence, the
mortgages on Lot No. 47, the tractor and the Offset Discharrow were foreclosed
and the properties were sold at public auction. After the foreclosure and sale of the
properties, the Pe spouses were asked to pay the deficiency in the amount of
P110,095.08 as of April 5, 1979, and the overdue balance in several promissory
notes.
On November 25, 1976, the Pe spouses commenced a complaint for specific
performance and/or rescission of contract and reconveyance of property with
damages, with the Court of First Instance of Iloilo.
After a careful perusal of the facts and circumstances of the case, the trial court
reached the conclusion that the questioned stipulation in the contract is clear and
could not be construed otherwise. (Record on Appeal, p. 109) In addition, the court
found that there was partial novation through the substitution of spouses Jose Juan
Tong and his wife for Domingo Sy in the purchase of Lots 40 and 41 and the two
buildings thereon. Accordingly, the trial court rendered a decision on August 3,
1981, the dispositive portion is hereunder quoted as follows:
WHEREFORE, the above-entitled case is dismissed. With costs against the plaintiffs.
SO ORDERED. (Record on Appeal, p. 111)
From said decision, the Pe spouses interposed an appeal before the respondent
Intermediate Appellate Court (now Court of Appeals). The respondent court affirmed
the trial courts decision and rendered judgment on December 27, 1985, to wit:
WHEREFORE, the decision appealed from is hereby AFFIRMED. With costs.
SO ORDERED. (Rollo, p. 24)
On March 1, 1986, the Pe spouses filed a motion for reconsideration of the
aforementioned Intermediate Appellate Courts (now Court of Appeals) decision.
However, respondent court in a resolution dated May 7, 1986 denied the motion for
lack of merit.
Hence, this present petition raising this lone issue:
WHETHER THE ENTIRE CONSIDERATION OF THE CONTRACT TO SELL IS P620,000.00
OR P1,544,161.05 (Rollo, p. 8)
However, the petitioners raised four (4) assignment of errors, which are as follows:
I

245
THE LOWER COURT ERRED IN GIVING THE DEFENDANTS THE BENEFITS OF
NOVATION AS A DEFENSE NOTWITHSTANDING THAT NO SUCH SPECIAL OR
AFFIRMATIVE DEFENSE HAS EVER BEEN INTERPOSED IN THEIR ANSWER AND THUS
DEEMED WAIVED BY THEM.
II

THE LOWER COURT ERRED IN DEALING WITH ISSUES THAT WERE NEITHER RAISED
IN THE PLEADING NOR INCIDENTAL TO THE ISSUE JOINED THEREBY WHICH HAD
BEEN AGREED UPON BY THE PARTIES IN THE PRE-TRIAL CONFERENCE AS THE ONLY
ONE TO BE RESOLVED BY THE COURT.
III

THE LOWER COURT ERRED IN NOT FINDING THAT THE PREPONDERANCE OF

EVIDENCE IS IN FAVOR OF THE PLAINTIFFS.
IV

THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT.

Petitioners allege that the consideration of the Contract to Sell is P1,544,161.05 and
thereby submit the following grounds as the basis for its allegation, to wit:
1. The wordings of the Contract itself point to the consideration of P1,544,161.05. x
x x. (Rollo, p. 9)
x

The petitioners insist that the questioned stipulations of the contract mean
that Second Party (private respondents) shall first pay the total bank obligations
of the five (5) lots to the three (3) banks (Development Bank of the Philippines,
Philippine Veterans Bank and Philippine Commercial and Industrial Bank) and
thereafter, pay the amount of P620,000.00 to the first party (petitioners). Since the
total obligations to the three (3) banks is P924,161.05, the total consideration is
that amount plus P620,000.00 which is P1,544,161.05. (Rollo, pp. 9-10).
2. x x x

246
To limit the consideration to only P620,000.00 is senseless and absurd because the
bank obligations alone amounted to P924,161.05very much more than
P620,000.00. (Rollo, p. 10)
3. x x x
To insist on P620,000.00 is to make ineffective the terms and conditions providing
for the payment of the bank obligationsan interpretation which would contradict
the clear and positive stipulation of the contract. (Rollo, p. 10)
x x x
4. The logic and common sense of the contract point to P1,544,161.05 as the
consideration. (Rollo, p. 11)
x x x
5. x x x
If the consideration is only P620,000.00, why did the two private respondents pay
the obligations covering Lots Nos. 40, 41, 42 and 45 with the banks? They had no
business doing that because they would eventually be paying moreP924,161.05
(the total bank obligations). (Rollo, p. 11)
6. x x x.
The market value of the lots in 1976 must be twice its value in 1967, hence,
it is very far from the version of the private respondent which is P620,000.00.
(Rollo, p. 11)
On petitioners first assignment of error, they contend that novation was never
raised in the pleadings nor in the pre-trial conference, hence, the lower court erred
in giving the defendants the benefit of novation as a defense.
For its second assignment of error, petitioners allege that the respondent court has
no jurisdiction to invent its own issues. It is not only the parties who are bound by
the issues stated in the pre-trial order but the court is equally bound thereby.
(Rollo, p. 14)
On the other hand, respondents argue that the questioned stipulations in the
Contract to Sell are undoubtedly clear and unambiguous and insisted that only the
petitioners injected doubtful interpretation to said stipulations.
In response to petitioners first and second assignment of error, the respondents
contend that the records of the case will show that novation was pleaded in the
answer; thus, having been properly pleaded the issued novation was

247
unquestionably within the jurisdiction of the Honorable lower court to resolve.
(Rollo, pp. 121-122)
The Court finds petitioners first and second assignment of errors meritorious.
In the recent case of General Insurance and Surety Corporation v. Union Insurance
Society of Canton (G.R. Nos. 30475-76, 22 November 1989, 179 SCRA 530), the
Court citing Section 2, Rule 9 of the Revised Rules of Court ruled that defenses and
objections not pleaded either in a motion to dismiss or in the answer are deemed
waived, the only exceptions recognized under the rule being: (1) a failure to state a
cause of action, and (2) lack of jurisdiction.
In contradiction to respondents contention, We rule that novation was never
pleaded in the respondents answer, hence, such defense is deemed waived.
Time and again, We stress that courts of justice have no jurisdiction or power to
decide a question not in issue. (Viajar v. Court of Appeals, G.R. No. 77294, 12
December 1988, 168 SCRA 405, 411 citing Lim Toco v. Go Fay, 80 Phil. 166) A
judgment going outside the issues and purporting to adjudicate something upon
which the parties were not heard is not merely irregular, but extrajudicial and
invalid. (Viajar v. Court of Appeals, supra citing Salvante v. Cruz, 88 Phil. 236-244,
Lazo v. Republic Surety and Insurance Co., Inc., 31 SCRA 329, 334).
Thus, the lower court erred in discussing novation, an issue which is neither raised
in the pleadings nor material to the controversy. The lower court is hereby
admonished in dealing and discussing issues that were neither raised in the
pleadings, incidental or material to the controversy at bar.
Notwithstanding such error, We still rule that the findings of facts of the lower court
considering the fact that such were affirmed by the appellate court should be given
full credit.
The Supreme Court is not a trier of facts. It leaves these matters to the lower court,
which have more opportunity and facilities to examine these matters. The Supreme
Court has no jurisdiction as a rule to reverse the lower courts findings.
(Korean Airlines Ltd. v. Court of Appeals, G.R. No. 61418, 24 September 1987, 154
SCRA 211) As a rule, findings of fact of the Court of Appeals are final and conclusive
and cannot be reviewed on appeal, provided, they are borne out by the record or
are based on substantial evidence. However, this rule admits of certain exceptions,
as when the findings of facts are conclusions without citation of specific evidence on
which they are based; or the appellate courts findings are contrary to those of the
trial court. (Sese v. Intermediate Appellate Court, G.R. No. 66168, 31 July 1987, 152
SCRA 585)
The findings of fact of both courts are conclusions based on substantial evidence
and the appellate courts findings are not in any way contrary to that of the lower

248
court, therefore, such factual findings are conclusive and should be given great
weight.
The lower courts decision is based on the specific provisions of the contract. It ruled
that this particular stipulation is clear and could not be construed otherwise.
Plaintiff Francisco Pe is a holder of the degree of Bachelor of Science in Commerce
with twenty six years of experience as businessman. He could have realized the
import of the document he signed. (Record on Appeal, p. 64)
Article 1370 of the New Civil Code provides that:
If the terms of a contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulation shall control.
If the words appear to be contrary to the evident intention of the parties, the latter
shall prevail over the former.
After a thorough examination of the provisions of the Contract to Sell, the Court
finds petitioners contention devoid of merit. The words of the contract are clear and
leave no doubt upon the true intention of the contracting parties. The condition laid
down in paragraph (2) of the Contract to Sell does not provide for an additional
consideration but only provides for the manner in which the consideration is to be
applied. It clearly provides that the payment shall be applied to petitioners
obligations with the bank where the respective properties were mortgaged and
upon their release, petitioners shall execute the final deed of sale. The subsequent
acts of the parties conformed with this condition. Thus, the parties should be bound
by such written contract.
It should also be noted that at the time of the execution of the Contract to Sell, the
total obligation due to the PCIB as regards Lot No. 47 was only P99,374.89. The rise
of the same obligation to P383,615.96 (Record on Appeal, p. 98) was brought about
by subsequent loans the petitioners obtained with the same bank for which the
tractor and an Offset Discharrow were given as additional security.
Contracts are respected as the law between the contracting parties. The parties
may establish such stipulations, clauses, terms and conditions as they may want to
include. As long as such agreements are not contrary to law, morals, good customs,
public policy or public order they shall have the force of law between them.
(Mercantile Insurance Co., Inc. v. Ysmael Jr. and Co., Inc. G.R. No. 43862, 13 January
1989, 169 SCRA 66)
All premises considered, this Court is convinced that the lower court did not commit
any error in dismissing the complaint.
ACCORDINGLY, the appealed judgment and resolution of the respondent
Intermediate Appellate Court (now Court of Appeals) affirming the lower courts
decision are hereby AFFIRMED with costs against the petitioners.

249
SO ORDERED.
Narvasa (Chairman), Cruz, Gancayco and Grio-Aquino, JJ., concur.
Judgment and resolution affirmed.
Notes.Lower courts have authority to resolve the issue of constitutionality of
legislative measures. (Ynot vs. Intermediate Appellate Court, 148 SCRA 659.)
Courts of justice have no jurisdiction to decide a question not in issue. (Ogan vs.
Ogan-Occena, 148 SCRA 677.)
o0o

G.R. No. 78860. May 28, 1990.*

PERLA COMPANIA DE SEGUROS, INC., petitioner, vs. HONORABLE COURT OF
APPEALS and MILAGROS CAYAS, respondents.
Insurance Law; Contracts; The terms of the contract constitute the measure of the
insurers liability and compliance therewith is a condition precedent to the insureds
right of recovering from the insurer.We have ruled in Stokes vs. Malayan Insurance
Co., Inc., that the terms of the contract constitute the measure of the insurers
liability and compliance therewith is a condition precedent to the insureds right of
recovery from the insurer.
_______________

* THIRD DIVISION.
Same; Same; Same; Petitioners liability under the insurance contract not being less
than P12,000.00 and therefore not contrary to law, morals, good customs, public
order or public policy, said stipulation must be upheld as effective, valid and binding
as between the parties.In the case at bar, the insurance policy clearly and
categorically placed petitioners liability for all damages arising out of death or
bodily injury sustained by one person as a result of any one accident at P12,000.00.
Said amount complied with the minimum fixed by the law then prevailing, Section

250
377 of Presidential Decree No. 612 (which was retained by P.D. No. 1460, the
Insurance Code of 1978), which provided that the liability of land transportation
vehicle operators for bodily injuries sustained by a passenger arising out of the use
of their vehicles shall not be less than P12,000. In other words, under the law, the
minimum liability is P12,000 per passenger. Petitioners liability under the insurance
contract not being less than P12,000.00, and therefore not contrary to law, morals,
good customs, public order or public policy, said stipulation must be upheld as
effective, valid and binding as between the parties.
Same; Same; Same; Condition requiring private respondent to secure the written
permission of petitioner before effecting any payment in settlement of any claim
against her is valid and binding.In like manner, we rule as valid and binding upon
private respondent the condition above-quoted requiring her to secure the written
permission of petitioner before effecting any payment in settlement of any claim
against her. There is nothing unreasonable, arbitrary or objectionable in this
stipulation as would warrant its nullification. The same was obviously designed to
safeguard the insurers interest against collusion between the insured and the
claimants.
Same; Same; Same; Same; Private respondent precluded from seeking
reimbursement of the payments made to del Carmen, Magsar-ili and Antolin in view
of the failure to comply with the condition contained in the insurance policy.It
being specifically required that petitioners written consent be first secured before
any payment in settlement of any claim could be made, private respondent is
precluded from seeking reimbursement of the payments made to del Carmen,
Magsarili and Antolin in view of her failure to comply with the condition contained in
the insurance policy.
Same; Same; Civil Law; Fundamental principle that contracts are respected as the
law between the contracting parties finds application in the present case.Clearly,
the fundamental principle that contracts are respected as the law between the
contracting parties finds application in the present case. Thus, it was error on the
part of the trial and appellate courts to have disregarded the stipulations of the
parties and to have substituted their own interpretation of the insurance policy. In
Phil. American General Insurance Co., Inc. vs. Mutuc, we ruled that contracts which
are the private laws of the contracting parties should be fulfilled according to the
literal sense of their stipulations, if their terms are clear and leave no room for
doubt as to the intention of the contracting parties, for contracts are obligatory, no
matter what form they may be, whenever the essential requisites for their validity
are present.
Same; Same; Same; Same; The first and fundamental duty of the courts is the
application of the law according to its express terms, interpretation being called for
only when such literal application is impossible.Moreover, we stated in Pacific
Oxygen & Acetylene Co. vs. Central Bank, that the first and fundamental duty of the

251
courts is the application of the law according to its express terms, interpretation
being called for only when such literal application is impossible.
PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Yabut, Arandia & Associates for petitioner.
Dolorfino and Dominguez Law Offices for private respondent.
FERNAN, C.J.:

This is a petition for review on certiorari of the decision of the Court of Appeals1
affirming in toto the decision of the Regional Trial Court of Cavite, Branch XVI,2 the
dispositive portion of which states:
IN VIEW OF THE FOREGOING, judgment is hereby rendered ordering defendant
Perla Compania de Seguros, Inc. to pay plaintiff Milagros Cayas the sum of
P50,000.00 under its maximum liability as provided for in the insurance policy; and
the sum of P5,000.00 as reasonable attorneys fees, with costs against said
defendant.
__________________

1 Jose A.R. Melo, J., ponente, with Esteban M. Lising and Celso L. Magsino, JJ.,
concurring.
2 Luis L. Victor, presiding judge.
SO ORDERED.3
Private respondent Milagros Cayas was the registered owner of a Mazda bus with
serial No. TA3H4 P-000445 and plate No. PUB-4G-593.4 Said passenger vehicle was
insured with Perla Compania de Seguros, Inc. (PCSI) under policy No. LTO/60CC04241 issued on February 3, 1978.5
On December 17, 1978, the bus figured in an accident in Naic, Cavite injuring
several of its passengers. One of them, 19-year-old Edgardo Perea, sued Milagros
Cayas for damages in the Court of First Instance of Cavite, Branch I6 docketed as
Civil Case No. NC-794; while three others, namely: Rosario del Carmen, Ricardo
Magsarili and Charlie Antolin, agreed to a settlement of P4,000.00 each with
Milagros Cayas.

252
At the pre-trial of Civil Case No. NC-794, Milagros Cayas failed to appear and hence,
she was declared as in default. After trial, the court rendered a decision7 in favor of
Perea with its dispositive portion reading thus:
WHEREFORE, under our present imperatives, judgment is hereby rendered in favor
of the plaintiffs and against the defendant Milagros Cayas who is hereby ordered to
compensate the plaintiff Edgar Perea with damages in the sum of Ten Thousand
(P10,000.00) Pesos for the medical predicament he found himself as damaging
consequences of defendant Milagros Cayas complete lack of diligence of a good
father of a family when she secured the driving services of one Oscar Figueroa on
December 17, 1978; the sum of Ten Thousand (P10,000.00) Pesos for exemplary
damages; the sum of Five Thousand (P5,000.00) Pesos for moral damages; the sum
of Seven Thousand (P7,000.00) Pesos for Attorneys fees, under the imperatives of
the monetary power of the peso today;
With costs against the defendant.
SO ORDERED.
When the decision in Civil Case No. NC-794 was about to be executed against her,
Milagros Cayas filed a complaint against PCSI in the Office of the Insurance
Commissioner praying that PCSI be ordered to pay P40,000.00 for all the claims
against her arising from the vehicular accident plus legal and other expenses.8
Realizing her procedural mistake, she later withdrew said complaint.9
Consequently, on November 11, 1981, Milagros Cayas filed a complaint for a sum of
money and damages against PCSI in the Court of First Instance of Cavite (Civil Case
No. N-4161). She alleged therein that to satisfy the judgment in Civil Case No. NC794, her house and lot were levied upon and sold at public auction for P38,200;10
that to avoid numerous suits and the detention of the insured vehicle, she paid
P4,000 to each of the following injured passengers: Rosario del Carmen, Ricardo
Magsarili and Charlie Antolin; that she could not have suffered said financial setback
had the counsel for PCSI, who also represented her, appeared at the trial of Civil
Case No. NC-794 and attended to the claims of the three other victims; that she
sought reimbursement of said amounts from the defendant, which, notwithstanding
the fact that her claim was within its contractual liability under the insurance policy,
refused to make such reimbursement; that she suffered moral damages as a
consequence of such refusal, and that she was constrained to secure the services of
counsel to protect her rights. She prayed that judgment be rendered directing PCSI
to pay her P50,000 for compensation of the injured victims, such sum as the court
might approximate as damages, and P6,000 as attorneys fees.
In view of Milagros Cayas failure to prosecute the case, the court motu proprio
ordered its dismissal without prejudice.11 Alleging that she had not received a copy
of the answer to the complaint, and that out of sportsmanship, she did not file a
motion to hold PCSI in default, Milagros Cayas moved for the reconsideration of the

253
dismissal order. Said motion for reconsideration was acted upon favorably by the
court in its order of March 31, 1982.
About two months later, Milagros Cayas filed a motion to declare PCSI in default for
its failure to file an answer. The motion was granted and plaintiff was allowed to
adduce evidence ex-parte. On July 13, 1982, the court rendered judgment by
default ordering PCSI to pay Milagros Cayas P50,000 as compensation for the
injured passengers, P5,000 as moral damages and P5,000 as attorneys fees.
Said decision was set aside after the PCSI filed a motion therefor. Trial of the case
ensued. In due course, the court promulgated a decision in Civil Case No. N-4161,
the dispositive portion of which was quoted earlier, finding that:
In disavowing its obligation to plaintiff under the insurance policy, defendant
advanced the proposition that before it can be made to pay, the liability must first
be determined in an appropriate court action. And so plaintiffs liability was
determined in that case filed against her by Perea in the Naic CFI. Still, despite this
determination of liability, defendant sought escape from its obligation by positing
the theory that plaintiff Milagros Cayas lost the Naic case due to her negligence
because of which, efforts exerted by defendants lawyers in protecting Cayas rights
proved futile and rendered nugatory. Blame was laid entirely on plaintiff by
defendant for losing the Naic case. Defendant labored under the impression that
had Cayas cooperated fully with defendants lawyers, the latter could have won the
suit and thus relieved of any obligation to Perea. Defendants posture is stretching
the factual circumstances of the Naic case too far. But even accepting defendants
postulate, it cannot be said, nor was it shown positively and convincingly, that if the
Naic case had proceeded on trial on the merits, a decision favorable to Milagros
Cayas could have been obtained. Nor was it definitely established that if the pretrial was undertaken in that case, defendants lawyers could have mitigated the
claim for damages by Perea against Cayas.12
The court, however, held that inasmuch as Milagros Cayas failed to establish that
she underwant moral suffering and mental anguish to justify her prayer for
damages, there should be no such award. But, there being proof that she was
compelled to engage the services of counsel to protect her rights under the
insurance policy, the court allowed attorneys fees in the amount of P5,000.
PCSI appealed to the Court of Appeals, which, in its decision of May 8, 1987 affirmed
in toto the lower courts decision. Its motion for reconsideration having been denied
by said appellate court, PCSI filed the instant petition charging the Court of Appeals
with having erred in affirming in toto the decision of the lower court.
At the outset, we hold as factual and therefore undeserving of this Courts attention,
petitioners assertions that private respondent lost Civil Case No. NC-794 because of
her negligence and that there is no proof that the decision in said case has been

254
executed. Said contentions, having been raised and threshed out in the Court of
Appeals and rejected by it, may no longer be addressed to this Court.
Petitioners other contentions are primarily concerned with the extent of its liability
to private respondent under the insurance policy. This, we consider to be the only
issue in this case.
Petitioner seeks to limit its liability only to the payment made by private respondent
to Perea and only up to the amount of P12,000.00. It altogether denies liability for
the payments made by private respondents to the other three (3) injured
passengers Rosario del Carmen, Ricardo Magsarili and Charlie Antolin in the amount
of P4,000.00 each or a total of P12,000.00.
There is merit in petitioners assertions.
The insurance policy involved explicitly limits petitioners liability to P12,000.00 per
person and to P50,000.00 per accident.13 Pertinent provisions of the policy also
state:
SECTION ILiability to the Public
x x x

xxx

xxx

3. The Limit of Liability stated in Schedule A as applicable (a) to THIRD PARTY is the
limit of the Companys liability for all damages arising out of death, bodily injury
and damage to property combined so sustained as the result of any one accident;
(b) per person for PASSENGER liability is the limit of the Companys liability for all
damages arising out of death or bodily injury sustained by one person as the result
of any one accident; (c) per accident for PASSENGER liability is, subject to the
above provision respecting per person, the total limit of the Companys liability for
all such damages arising out of death or bodily injury sustained by two or more
persons as the result of any one accident.
Conditions Applicable to All Sections
x x x

xxx

xxx

5. No admission, offer, promise or payment shall be made by or on behalf of the

Insured without the written consent of the Company which shall be entitled, if it so
desires, to take over and conduct in his (sic) name the defense or settlement of any
claim, or to prosecute in his (sic) name for its own benefit any claim for indemnity or
damages or otherwise, and shall have full discretion in the conduct of any
proceedings in the settlement of any claim, and the insured shall give all such
information and assistance as the Company may require. If the Company shall make
any payment in settlement of any claim, and such payment includes any amount
not covered by this Policy, the Insured shall repay the Company the amount not so
covered.

255
We have ruled in Stokes vs. Malayan Insurance Co., Inc.,14 that the terms of the
contract constitute the measure of the insurers liability and compliance therewith is
a condition precedent to the insureds right of recovery from the insurer. In the case
at bar, the insurance policy clearly and categorically placed petitioners liability for
all damages arising out of death or bodily injury sustained by one person as a result
of any one accident at P12,000.00. Said amount complied with the minimum fixed
by the law then prevailing, Section 377 of Presidential Decree No. 612 (which was
retained by P.D. No. 1460, the Insurance Code of 1978), which provided that the
liability of land transportation vehicle operators for bodily injuries sustained by a
passenger arising out of the use of their vehicles shall not be less than P12,000. In
other words, under the law, the minimum liability is P12,000 per passenger.
Petitioners liability under the insurance contract not being less than P12,000.00,
and therefore not contrary to law, morals, good customs, public order or public
policy, said stipulation must be upheld as effective, valid and binding as between
the parties.15
In like manner, we rule as valid and binding upon private respondent the condition
above-qouted requiring her to secure the written permission of petitioner before
effecting any payment in settlement of any claim against her. There is nothing
unreasonable, arbitrary or objectionable in this stipulation as would warrant its
nullification. The same was obviously designed to safeguard the insurers interest
against collusion between the insured and the claimants.
In her cross-examination before the trial court, Milagros Cayas admitted, thus:
Atty. Yabut:
q
With respect to the other injured passengers of your bus wherein you made
payments you did not secure the cons ent of defendant (herein petitioner) Perla
Compania de Seguros when you made those payments?
a
I informed them about that.
q
But they did not give you the written authority that you were supposed to pay those
claims?
a
No, sir.16
It being specifically required that petitioners written consent be first secured before
any payment in settlement of any claim could be made, private respondent is

256
precluded from seeking reimbursement of the payments made to del Carmen,
Magsarili and Antolin in view of her failure to comply with the condition contained in
the insurance policy.
Clearly, the fundamental principle that contracts are respected as the law between
the contracting parties finds application in the present case.17 Thus, it was error on
the part of the trial and appellate courts to have disregarded the stipulations of the
parties and to have substituted their own interpretation of the insurance policy. In
Phil. American General Insurance Co., Inc. vs. Mutuc,18 we ruled that contracts
which are the private laws of the contracting parties should be fulfilled according to
the literal sense of their stipulations, if their terms are clear and leave no room for
doubt as to the intention of the contracting parties, for contracts are obligatory, no
matter what form they may be, whenever the essential requisites for their validity
are present.
Moreover, we stated in Pacific Oxygen & Acetylene Co. vs. Central Bank,19 that the
first and fundamental duty of the courts is the application of the law according to its
express terms, interpretation being called for only when such literal application is
impossible.
We observe that although Milagros Cayas was able to prove a total loss of only
P44,000.00, petitioner was made liable for the amount of P50,000.00, the maximum
liability per accident stipulated in the policy. This is patent error. An insurance
indemnity, being merely an assistance or restitution insofar as can be fairly
ascertained, cannot be availed of by any accident victim or claimant as an
instrument of enrichment by reason of an accident.20
Finally, we find no reason to disturb the award of attorneys fees.
WHEREFORE, the decision of the Court of Appeals is hereby modified in that
petitioner shall pay Milagros Cayas the amount of Twelve Thousand Pesos
(P12,000.00) plus legal interest from the promulgation of the decision of the lower
court until it is fully paid and attorneys fees in the amount of P5,000.00. No
pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Corts, JJ., concur.
Decision modified.
Note.Contracts are respected as the law between the con- [Perla Compania de
Seguros, Inc. vs. Court of Appeals, 185 SCRA 741(1990)]

257

[No. 13602. April 6, 1918.]

LEUNG BEN, plaintiff, vs. P. J. O'BRIEN ; JAMES A. OSTRAND and GEO. R. HARVEY,
judges of First Instance of the city of Manila, defendants.
1.CERTIORARI; ISSUANCE OF ATTACHMENT WITHOUT STATUTORY AUTHORITY.
Where a Court of First Instance issues an attachment for which there is no statutory
authority, it is acting irregularly and in .excess of its jurisdiction in the sense
necessary to justify the Supreme Court in entertaining an application for a writ of
certiorari and quashing the attachment.
2.ID.; ID.; INADEQUATE REMEDY.In such case the remedy on the attachment bond
or by appeal would not be sufficiently speedy to meet the exigencies of the case.
Attachment is an exceedingly violent measure and its unauthorized issuance may
result in the infliction of damage which could never be repaired by any pecuniary
award at the final hearing.
3.ID.; ID.; DISTINCTION BETWEEN JURISDICTION OVER PRINCIPAL CAUSE AND OVER
ANCILLARY REMEDY.There is a clear distinction to be noted between the
jurisdiction of a Court of First Instance with respect to the principal cause of action
and its jurisdiction to grant an auxiliary remedy, like attachment. A court, although
it may have unquestioned jurisdiction over the principal cause of action, may
nevertheless act irregularly or in excess of its jurisdiction in granting the auxiliary
remedy. In such case the party aggrieved may prosecute a proceeding by writ of
certiorari in the Supreme Court. (Herrera vs. Barretto and Joaquin, 25 Phil. Rep.,
245, distinguished.)
4.CONTRACT; IMPLIED CONTRACT.The obligation imposed by Act No. 1757 upon
the winner in a prohibited game to return to the loser the money or other thing of
value won at play is an "implied contract," as this term is used in subsection (1) of
section 412 of the Code of Civil Procedure.
5.ATTACHMENT; CAUSE OF ACTION ARISING UPON CONTRACT, EXPRESS OR IMPLIED.
In an action brought pursuant to the provisions of Act No. 1757 to recover a sum
of money lost at play, an attachment was obtained in the Court of First Instance
under section 424 in connection with subsection 1 of section 412 of the Code of Civil
Procedure. These provisions authorize the issuance of an attachment in an action

258
for the recovery of money on a cause of action arising upon contract, express or
implied, when the defendant is about to depart from the Philippine Islands. Held:
That the cause of action arose upon an implied contract and that the action of the
court in issuing the attachment would not be annulled by the Supreme Court in a
proceeding by writ of certiorari.
ORIGINAL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the .Court.
Thos. D. Aitken and W. A. Aymstrong, for plaintiff.
Kincaid & Perkins, for defendants.
STREET, J.:

This is an application for a writ of certiorari, the purpose of which is to quash an

attachment issued from the Court of First Instance of the City of Manila under
circumstances hereinbelow stated.
Upon December 12, 1917, an action was instituted in the Court of First Instance of
the city of Manila by P. J. O'Brien to recover of Leung Ben the sum of P15,000,
alleged to have been lost by the plaintiff to the defendant in a series of gambling,
banking, and percentage games conducted during the two or three months prior to
the institution of the suit. In his verified complaint the plaintiff asked for an
attachment, under sections 424 and 412 (1) of the Code of Civil Procedure, against
the property of the defendant, on the ground that the latter was about to depart
from the Philippine Islands with intent to defraud his creditors. This attachment was
issued; and acting under the authority thereof, the sheriff attached the sum of
P15,000 which had been deposited by the defendant with the International Banking
Corporation.
The defendant thereupon appeared by his attorney and moved the court to quash
the attachment. Said motion having been dismissed in the Court of First Instance,
the petitioner, Leung Ben, the defendant in that action, presented to this court,
upon January 8, 1918, his petition for the writ of certiorari directed against P. J.
O'Brien and the judges of the Court of First Instance of the city of Manila whose
names are. mentioned in the caption hereof. The prayer is that the Honorable James
A. Ostrand, as the judge having cognizance of the action in said court (P. J. O'Brien
vs. Leung Ben) be required to certify the record to this court for review and that the
order of attachment which had been issued should be revoked and discharged, with
costs. Upon the filing of said petition in this court the usual order was entered
requiring the defendants to show cause why the writ should not issue. The response
of the defendants, in the nature of a demurrer, was filed upon January 21, 1918; and
the matter is now heard upon the pleadings thus presented.

259
The provision of law under which this attachment was issued requires that there
should be a "cause of action arising upon contract, express or implied." The
contention of the petitioner is that the statutory action to recover money lost at
gaming is not such an action as is contemplated in this provision, and he therefore
insists that the original complaint shows on its face that the remedy of attachment
is not available in aid thereof; that the Court of First Instance acted in excess of its
jurisdiction in granting the writ of attachment; that the petitioner has no plain,
speedy, and adequate remedy by appeal or otherwise; and that consequently the
writ of certiorari supplies the appropriate remedy for his relief.
The case presents the two following questions of law, either of which, if decided
unfavorably to the petitioner, will be fatal to his application:
(1) Supposing that the Court of First lnstance has granted an attachment for which
there is no statutory authority, can this court entertain the present petition and
grant the desired relief ?
(2) Is the statutory obligation to restore money won at gaming an obligation arising
from "contract, express or implied?"
We are of the opinion that the answer to the first question should be in the
affirmative. Under section 514 of the Code of Civil Procedure the Supreme Court has
original jurisdiction by the writ of certiorari over the proceedings of Courts of First
Instance, "wherever said courts have exceeded their jurisdiction and there is no
plain, speedy, and adequate remedy." In the same section, it is further declared that
the proceedings in the Supreme Court in such cases shall be as prescribed for
Courts of First Instance in sections 217-221, inclusive, of said Code. This has the
effect of incorporating into the practice of the Supreme Court, so far as applicable,
the provisions contained in those sections to the same extent as if they had been
reproduced verbatim immediately after section 514. Turning to section 217, we find
that, in defining the conditions under which certiorari can be maintained in a Court
of First Instance, substantially the same language is used as is found in section 514
relative to the conditions under which the same remedy can be maintained in the
Supreme Court, namely, when the inferior tribunal has exceeded its jurisdiction and
there is no appeal, nor any plain, speedy, and adequate remedy. In using these
expressions the author of the Code of Civil Procedure merely adopted the language
which, in American jurisdictions at least, had long ago reached the stage of a
stereotyped formula.
In section 220 of the same Code, we have a provision relative to the final
proceedings in certiorari, and herein it is stated that the court shall determine
whether the inf erior tribunal has regularly pursued its authority and that if it finds
that such inferior tribunal has not regularly pursued its authority, it shall give
judgment, either affirming, annulling, or modifying the proceedings below, as the
law requires. The expression, "has not regularly pursued its authority," as here.

260
used, is suggestive, and we think it should be construed in connection with the
other expressions "have exceeded their jurisdiction," as used in section 514, and
"has exceeded the jurisdiction," as used in section 217. Taking the three together, it
results in our opinion that any irregular exercise of judicial power by a Court of First
Instance, in excess of its lawful jurisdiction, is remediable by the writ of certiorari,
provided there is no other plain, speedy, ,and adequate remedy; and in order to
make out a case for the granting of the writ it is not necessary that the court should
have acted in the matter without any jurisdiction whatever. Indeed the repeated use
of the expression "excess of jurisdiction" shows that the lawmaker contemplated the
situation where a court, having jurisdiction, should irregularly transcend its authority
as well as the situation where the court is totally devoid of lawful power.
It may be observed in this connection that the word "jurisdiction," as used in
attachment cases, has reference not only to the authority of the court to entertain
the principal action but also to its authority to issue the attachment, as dependent
upon the existence of the statutory ground. (6 C. J., 89.) This distinction between
jurisdiction over the main cause and jurisdiction to issue the attachment as an
ancillary remedy incident to the principal litigation is of importance; as a court's
jurisdiction over the main action may be complete, and yet it may lack authority to
grant an attachment as ancillary to such action. This distinction between jurisdiction
over the principal proceeding and jurisdiction over the ancillary has been recognized
by this court in connection with actions involving the appointment of a receiver.
Thus, in Rocha & Co. vs. Crossfield and Figueras (6 Phil. Rep., 355), a receiver had
been appointed without legal justification. It was held that the order making the
appointment was beyond the jurisdiction of the court; and though the court
admittedly had jurisdiction of the main cause, the order was vacated by this court
upon application for a writ of certiorari. (See Blanco vs. Ambler, 3 Phil. Rep., 358,
Blanco vs. Ambler and McMicking 3 Phil. Rep., 735; Yangco vs. Rohde, 1 Phil. Rep.,
404.)
By parity of reasoning it must follow that when a court issues a writ of attachment
for which there is no statutory authority, it is acting irregularly and in excess of its
jurisdiction, in the sense necessary to justify the Supreme Court in granting relief by
the writ of certiorari. In applying this proposition it is of course necessary to take
account of the difference between a ground of attachment based on the nature of
the action and a ground of attachment based on the acts or the condition of the
defendant. Every complaint must show a cause of action of some sort; and when
the statute declares that the attachment may issue in an action arising upon
contract, express or implied, it announces a criterion which may be determined
from an inspection of the language of the complaint. The determination of this
question is purely a matter of law. On the other hand, when the statute declares
that an attachment may be issued when the defendant is about to depart from the
Islands, a criterion is announced which is wholly foreign to the cause of action; and
the determination of it may involve a disputed question of fact which must be

261
decided by the court. In making this determination, the court obviously acts within
its powers; and it would be idle to suppose that the writ of certiorari would be
available to reverse the action of a Court of First Instance in determining the
sufficiency of the proof on such a disputed point, and in granting or refusing the
attachment accordingly.
We should not be understood, in anything that has been said, as intending to
infringe the doctrine enunciated by this court in Herrera vs. Barretto and Joaquin (25
Phil. Rep., 245), when properly applied. It was there held that we would not, upon an
application for a writ of certiorari, dissolve an interlocutory mandatory injunction
that had been issued in a. Court of First Instance as an incident in an action of
mandamus. The issuance of an interlocutory injunction depends upon conditions
essentially different from those involved in the issuance of an attachment. The
injunction is designed primarily for the prevention of irreparable injury and the use
of the remedy is in a great measure dependent upon the exercise of discretion.
Generally speaking, it may be said that the exercise of the injunctive power is
inherent in judicial authority; and ordinarily it would be impossible to distinguish
between the jurisdiction of the court in the main litigation and its' jurisdiction to
grant an interlocutory injunction, for the latter is involved in the former. That the
writ of certiorari can not be used to reverse an order denying a motion for a
preliminary injunction is of course not open to cavil. (Somes vs. Crossfield and
Molina, 8 Phil. Rep., 284.)
But it will be said that the writ of certiorari is not available in this case, because the
petitioner is protected by the attachment bond, and that he has a plain, speedy,
and adequate remedy by appeal. This suggestion seems to be sufficiently answered
in the case of Rocha & Co. vs. Crossfield and Figueras (6 Phil. Rep., 355), already
referred to, and the earlier case there cited. The remedy by appeal is not sufficiently
speedy to meet the exigencies of the case. An attachment is extremely violent, and
its abuse may often result in the infliction of damage which could" never be repaired
by any pecuniary award at the final hearing. To postpone the granting of the writ in
such a case until the final hearing and to compel the petitioner to bring the case
here upon appeal merely in order to correct the action of the trial court in the
matter of allowing the attachment would seem both unjust and unnecessary.
Passing to the problem propounded in the second question it may be observed that,
upon general principles, recognized both in the civil and common law, money lost
in gaming and voluntarily paid by the loser to the winner can not, in the absence of
statute, be recovered in a civil action. But Act No. 1757 of the Philippine
Commission, which defines and penalizes several forms of gambling, contains
numerous provisions recognizing the right to recover money lost in gambling or in
the playing of certain games (secs. 6, 7, 8, 9, 11). The original complaint in the
action in the Court of First Instance is not clear as to the particular section of Act No.
1757 under which the action is brought, but it is alleged that the money was lost at
gambling, banking, and percentage game in which the defendant was banker. It

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must therefore be assumed that the action is based upon the right of recovery given
in section 7 of said Act, which declares that an action may be brought against the
banker by any person losing money at a banking or percentage game.
Is this a cause of action arising upon contract, "express or implied," as this term is
used in section 412 of the Code of Civil Procedure? To begin the discussion, the
English version of the Code of Civil Procedure is controlling (sec, 15, Admin. Code,
ed. of 1917). Furthermore, it is universally admitted to be proper in the
interpretation of any statute, to consider its historical antecedents and its
jurisprudential sources. The Code of Civil Procedure, as is well known, is an
American contribution to Philippine legislation. It therefore speaks the language of
the common-law and for the most part reflects its ideas. When the draftsman of this
Code used the expression "contract, express or implied," he used a phrase that has
been long current among writers on American and English law; and it is therefore
appropriate to resort to that system of law to discover the meaning which the
legislator intended to convey by those terms. We remark in passing that the
expression "contrato tcito," used in the official translation of the Code of Civil
Procedure as the Spanish equivalent of "implied contract," does not appear to
render the full sense of the English expression.
The English contract law, so far as relates to simple contracts (i. e. contracts not
evidenced by a sealed instrument or a judicial record), is planted upon two
foundations, which are supplied by two very different conceptions of legal liability.
These two conceptions are revealed in the ideas respectively underlying (1) the
common-law debt and (2) the assumptual promise. In the early and formative
stages of the common-law the only simple contract of which the courts took account
was the real contract or contract re, in which the contractual duty imposed by law
arises upon the delivery of a chattel, as in the mutuum, commodatum, depositum,
and the like; and the purely consensual agreements of the Roman Law found no
congenial place in the early common law system.
In course of time the idea underlying the contract re was extended so as to include
all cases where there was something of value passing from one person to another
under such circumstance as to constitute a justa, causa debendi. The obligation
thereby created was a debt. The constitutive element in this obligation is found in
the fact that the debtor has received something from the creditor, which he is
bound by the obligation of law to return or pay for. From an early day this element
was denominated the quid pro quo, an ungainly phrase coined by Mediaeval
Latinity. The quid pro quo was primarily a material or physical object, and it
constituted the recompense or equivalent acquired by the debtor. Upon the passage
of the quid pro quo from one party to the other, the law imposed that real
contractual duty peculiar to the debt. No one conversant with the early history of
the English law would ever conceive of the debt as an obligation created by
promise. It is the legal duty to pay or deliver a sum certain of money or an
ascertainable quantity of ponderable or measurable chattels.

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The ordinary debt, as already stated, originates in a contract in which a quid pro
quo passes to the debtor at the time of the creation of the debt, but the term is
equally applicable to duties imposed by custom, or statute, or by judgment of a
court.
The existence of a debt supposes one person to have possession of a thing (res)
which he owes and hence ought to turn over the owner. This obligation is the oldest
conception of contract with which the common law is familiar; and notwithstanding
the centuries that have rolled over Westminster Hall that conception remains as one
of the fundamental bases of the common-law contract.
Near the end of the fifteenth century there was evolved in England a new
conception of contractual liability, which embodied the idea of obligation resulting
from promise and which found expression in the common law assumpsit, or parol
promise supported by a consideration. The application of this novel conception had
the effect of greatly extending the field of contractual liability and by this means
rights of action came to be recognized which had been unknown before. The action
of assumpsit which was the instrument for giving effect to this obligation was found
to be a useful remedy; and presently this action came to be used for the
enforcement of common-law debts. The result was to give to our contract law the
superficial appearance of being based more or less exclusively upon the notion of
the obligation of promise.
An idea is widely entertained to the effect that all simple contracts recognized in the
common-law system are referable to a single category. They all have their roots, so
many of us imagine, in one general notion of obligation; and of course the obligation
of promise is supposed to supply this general notion, being considered a sort of
menstruum in which all other forms of contractual obligation have been dissolved.
This is a mistake. The idea of contractual duty embodied in the debt, which was the
first conception of contract liability revealed in the common law, has remained,
although it was destined to be in a measure obscured by the more modern
conception of obligation resulting from promise.
What has been said is intended to exhibit the, fact that the duty to pay or deliver a
sum certain of money or an ascertainable quantity of ponderable or measurable
chattelswhich is indicated by the term debthas ever been recognized, in the
common-law system, as a true contract, regardless of the source of the duty or the
manner in which it is createdwhether derived from custom, statute or some
consensual transaction depending upon the voluntary acts of the parties. The form
of contract known as the "debt" is of most ancient lineage; and when reference is
had to historical antecedents, the right of the debt to be classed as a contract
cannot be questioned. Indeed when the new form of engagement consisting of the
parol promise supported by a consideration first appeared, it was looked upon as an
upstart and its right to be considered a true contract was questioned. It was long
customary to refer to it exclusively as an assumpsit, agreement, undertaking, or

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parol promise, in fact anything but a contract. Only in time did the new form of
engagement attain the dignity of being classed among true contracts.
The term "implied contract" takes us into the shadowy domain of those obligations
the theoretical classification of which has engaged the attention of scholars from
the time of Gaius until our own day and has been a source of as much difficulty to
the civilian as to the common-law jurist. Here we are concerned with those acts
which make one person debtor to another without there having intervened between
them any true agreement tending to produce a legal bond (vinculum juris). Of late
years some American and English legal writers have adopted the term quasicontract
as descriptive of these obligations or some of them; but the expression more
commonly used is "implied contract."
Upon examination of these obligations, from the view point of the common-law
jurisprudence, it will be found that they fall readily into two divisions, according as
they bear an analogy to the common-law debt or to the commonlaw assumpsit: To
exhibit the scope of these different classes of obligations is here impracticable. It is
only necessary in this connection to observe that the most conspicuous division is
that which comprises duties in the nature of debt. The characteristic feature of
these obligations is that upon certain states of fact the law imposes an obligation to
pay a sum certain of money; and it is characteristic of this obligation that the
money in respect to which the duty is raised is conceived as being the equivalent of
something taken or detained under circumstances giving rise to the duty to return
or compensate therefor. The proposition that no one shall be allowed to enrich
himself unduly at the expense of another embodies the general principle here lying
at the basis of obligation. The right to recover money improperly paid (repeticin de
lo indebido) is also recognized as belonging to this class of duties.
It will be observed that according to the Civil Code (article 1089) obligations are
supposed to be derived either from (1) the law, (2) contracts and quasi-contracts,
(3) illicit acts and omissions, or (4) acts in which some sort of blame or negligence is
present. This enumeration of the sources of obligations supposes that the quasicontractual obligation and the obligation imposed by law are of different types. The
learned Italian jurist, Jorge Giorgi, criticises this assumption and says that the
classification embodied in the code is theoretically erroneous. His conclusion is that
one or the other of these categories should have been suppressed and merged in
the other. (Giorgi, Teoria de las Obligaciones, Spanish ed., vol. 5 arts. 5, 7, 9.) The
validity of this criticism is, we think, self-evident; and it is of interest to note that the
common law makes no distinction between the two sources of liability. The
obligations which in the Code are indicated as quasi-contracts, as well as those
arising ex lege, are in the common law system merged into the category of
obligations imposed by law, and all are denominated implied contracts.
Many refinements, more or less illusory, have been attempted by various writers in
distinguishing different sorts of implied contracts, as, for example, the contract

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implied as of fact and the contract implied as of law (or constructive contract). No
explanation of these distinctions will be here attempted. Suffice it to say that the
term "contract, express or implied" is used by common-law jurists to include all
purely personal obligations other than those which have their source in delict, or
tort. As to these it may be said that, generally speaking, the law does not impose a
contractual duty upon a wrongdoer to compensate for injury done. It is true that in
certain situations where a wrongdoer unjustly acquires something at the expense of
another, the law imposes on him a duty to surrender his unjust acquisitions, and the
injured party may here elect to sue upon this contractual duty instead of suing upon
the tort; but even here the distinction between the two liabilities, in contract and in
tort, is never lost to sight; and it is always recognized that the liability arising out of
the tort is delictual and not of a contractual or quasi-contractual nature.
In the case now under consideration the duty of the defendant to refund the money
which he won from the plaintiff at gaming is a duty imposed by statute. It therefore
arises ex lege. Furthermore, it is a duty to return a certain sum which had passed
from the plaintiff to the defendant. By all the criteria which the common law
supplies, this is a duty in the nature of debt and is properly classified as an implied
contract. It is well-settled by the English authorities that money lost in gambling or
by lottery, if recoverable at all, can be recovered by the loser in an action of
indebitatus assumpsit for money had and received. (Clarke vs. Johnson, Lofft, 759;
Mason vs. Waite, 17 Mass., 560; Burnham vs. Fisher, 25 Vt., 5l4.) This means that in
the common law the duty to return money won in this way is an implied contract, or
quasi-contract.
It is no argument to say in reply to this that the obligation here recognized is called
an implied contract merely because the remedy commonly used in suing upon
ordinary contracts can be here used, or that the law adopted the fiction of a promise
in order to bring the obligation within the scope of the action of assumpsit. Such
statements fail to express the true import of the phenomenon. Before the remedy
was the idea; and the use of the remedy could not have been approved if it had not
been for historical antecedents which made the recognition of this remedy at once
logical and proper. Furthermore, it should not be forgotten that the question is not
how this duty came to be recognized in the common law as a contractual duty but
what sort of obligation did the author of the Code of Civil Procedure intend to
describe when he used the term implied contract in section 412.
In what has been said we have assumed that the obligation which is at the
foundation of the original action in the court below is not a quasi-contract, when
judged by the principles of the civil law. A few observations will show that this
assumption is not by any means free from doubt. The obligation in question
certainly does not fall under the definition of either of the two quasi-contracts which
are made the subject of special treatment in the Civil Code, for it does not arise
from a licit act as contemplated in article 1887 and the money was not paid under
error as contemplated in article 1895. The obligation is clearly a creation of the

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positive lawa circumstance which brings it within the purview of article 1090, in
relation with article 1089; and it is also derived from an illicit act, namely, the
playing of a prohibited game. It is thus seen that the provisions of the Civil Code
which might be consulted with a view to the correct theoretical classification of this
obligation are unsatisfactory and confusing.
The two obligations treated in the chapter devoted to quasi-contracts in the Civil
Code are: (1) The obligation incident to the officious management of the affairs of
other persons (gestin de negocios ajenos) and (2) the recovery of what has been
improperly paid (cobro de lo indebido). That the authors of the Civil Code selected
these two obligations for special treatment does not signify an intention to deny the
possibility of the existence of other quasi-contractual obligations. As is well said by
the commentator Manresa.
"The number of the quasi-contracts may be indefinite as may be the number of
lawful facts, the generations of the said obligations; but the Code, just as we shall
see further on, in the impracticableness of enumerating or including them all in a
methodical and orderly classification, has concerned itself with two onlynamely,
the management of the affairs of other persons and the recovery of things
improperly paidwithout attempting by this to exclude the others." (Manresa, 2d
ed., vol. 12, p. 549.)
It would indeed have been surprising if the authors of the Code, in the light of the
jurisprudence of more than a thousand years, should have arbitrarily assumed to
limit the quasi-contracts to two obligations. The author from whom we have just
quoted further observes that the two obligations in question were selected for
special treatment in the Code not only because they were the most conspicuous of
the quasi-contracts, but because they had not been the subject of consideration in
other parts of the Code. (Opus citat., p. 550.)
It is well recognized among civilian jurists that the quasi-contractual obligations
cover a wide range. The Italian jurist, Jorge Giorgi, to whom we have already
referred, considers under this head, among other obligations, the following:
payments made upon a future consideration which is not realized, or upon an
existing consideration which fails; payments wrongfully made upon a consideration
which is contrary to law, or opposed to public policy; and payments made upon a
vicious consideration or obtained by illicit means (Giorgi, Teoria de las Obligaciones,
vol. 5, art. 130.)
In permitting the recovery of money lost at play, Act No. 1757 has introduced
modifications in the application of articles 1798, 1801, and 1305 of the Civil Code.
The first two of these articles relate to gambling contracts, while article 1305 treats
of the nullity of contracts proceeding from a vicious or illicit consideration. Taking all
these provisions together, it must be apparent that the obligation to return money
lost at play has a decided affinity to contractual obligations; and we believe that it

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could, without violence to the doctrines of the civil law, be held that such
obligations is an innominate quasi-contract. It is, however, unnecessary to place the
decision on this ground.
From what has been said it follows that in our opinion the cause of action stated in
the complaint in the court below is based on a contract, express or implied, and is
therefore of such nature that the court had" authority to issue the writ of
attachment. The application for the writ of certiorari must therefore be denied and
the proceedings dismissed. So ordered.
Arellano, C. J., Torres, Joknson, and Carson, JJ., concur.
MALCOLM, J., concurring:

As I finished reading the learned and interesting decision of the majority, the
impression which remained was that the court was enticed by the nice and unusual
points presented to make a hard case out of an easy one, and unfortunately to do
violence to the principles of certiorari. The simple questions are: Did the Court of
First Instance of the city of Manila exceed its jurisdiction in granting an attachment
against the property of the defendant, now plaintiff ? Has this defendant, now
become the plaintiff, any other plain, speedy, and adequate remedy? The answers
are found in the decision of this court, in Herrera vs. Barretto and Joaquin ([1913],
25 Phil., 245), from which I quote the following:
"It has been repeatedly held by this court that a writ of certiorari will not be issued
unless it clearly appears that the court to which it is to be directed acted without or
in excess of jurisdiction. It will not be issued to cure errors in the proceedings or to
correct erroneous conclusions of law or of fact. If the court has jurisdiction of the
subject matter and of the person, decisions upon all questions pertaining to the
cause are decisions within its jurisdiction and, however irregular or erroneous they
may be, cannot be corrected by certiorari. The Code of Civil Procedure giving Courts
of First Instance general jurisdiction in actions for mandamus, it goes without saying
that the Court of First Instance had jurisdiction in the present case to resolve every
question arising in such an action and to decide every question presented to it
which pertained to the cause. It has already been held by this court that, while it is
a power to be exercised only in extreme cases, a Court of First Instance has power
to issue a mandatory injunction to stand until the final determination of the action in
which it is issued. While the issuance of the mandatory injunction in this particular
case may have been irregular and erroneous, a question concerning which we
express no opinion, nevertheless its issuance was within the jurisdietion of the court
and its action is not reviewable on cetiorari. It is not sufficient to say that it was
issued wrongfully and without sufficient grounds and in the absence of the other
party. The question is, Did the court act with jurisdiction?

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"It has been urged that the court exceeded its jurisdiction in requiring the municipal
president to issue the license, for the reason that he was not the proper person to
issue it and that, if he was the proper person, he had the right to exercise a
discretion as to whom the license should be issued. We do not believe that either of
these questions goes to the jurisdiction of the court to act. One of the fundamental
questions in a mandamus against a public officer is whether or not that officer has
the right to exercise discretion in the performance of the act which the plaintiff asks
him to perform. It is one of the essential determinations of the cause. To claim that
the resolution of that question may deprive the court of jurisdiction is to assert a
novel proposition. It is equivalent to the contention that a court has jurisdiction if he
decides right but no jurisdiction if he decides wrong. It may be stated generally that
it is never necessary to decide the fundamental questions of a cause to determine
whether the court has jurisdiction. The question of jurisdiction is preliminary and
never touches the merits of the case. The determination of the fundamental
questions of a cause are merely the exercise of a jurisdiction already conceded. In
the case at bar no one denies the power, authority, or jurisdiction of the Court of
First Instance to take cognizance of an action for mandamus and to decide every
question which arises in that cause and pertains thereto. The contention that the
decision of one of those questions, if wrong, destroys jurisdiction involves an
evident contradiction.
"Jurisdiction is the authority to hear and determine a causethe right to act in a
case, Since it is the power to hear and determine, it does not depend either upon
the regularity of the exercise of that power or upon the rightfulness of the decisions
made. Jurisdiction should therefore be distinguished from the exercise of
jurisdiction.
The authority to decide a cause at all, and not the decision rendered therein, is what
makes up jurisdiction. Where there is jurisdiction of the person and subject matter,
as we have said before, the decision of all other questions arising in the case is but
an exercise of that jurisdiction."
Then follows an elaborate citation and discussion of American authorities, including
a decision of the United States Supreme Court and of the applicable Philippine
cases. The decision continues:
"The reasons given in these cases last cited for the allowance of the writ of
prohibition are applicable only to the class of cases with which the decisions deal
and do not in any way militate against the general proposition herein asserted.
Those which relate to election contests are based upon the principle that those
proceedings are special in their nature and must be strictly followed, a material
departure from the statute resulting in a loss, or in an excess, of jurisdiction. The
cases relating to receivers are based, in a measure, upon the same principle, the
appointment of a receiver being governed by the statute; and in part upon the
theory that the appointment of a receiver in an improper case is in substance a

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bankruptcy proceeding, the taking of which is expressly prohibited by law. The case
relative to the allowance of alimony pendente lite when the answer denies the
marriage is more difficult to distinguish. The reasons in support of the doctrine laid
down in that case are given in the opinion in full and they seem to place the
particular case to which they refer in a class by itself.
"It is not a light thing that the lawmakers have abolished writs of error and with
them certiorari and prohibition, in so far as they were methods by which the mere
errors of an inferior court could be corrected. As instruments to that end they no
longer exist. Their place is now taken by the appeal. So long as the inferior court
retains jurisdiction its errors can be corrected only by that method. The office of the
writ of certiorari has been reduced to the correction of defects of jurisdiction solely
and cannot legally be used for any other purpose. It is truly an extraordinary
remedy and, in this jurisdiction, its use is restricted to truly extraordinary cases
cases in which the action of the inferior court is wholly void; where any further steps
in the case would result in a waste of time and money and would produce no result
whatever; where the parties, or their privies, would be utterly deceived; where a
final judgment or decree would be nought but a snare and a delusion, deciding
nothing, protecting nobody, a judicial pretension, a recorded falsehood, a standing
menace. It is only to avoid such results as these that a writ of certiorari is issuable;
and even here an appeal will lie if the aggrieved party prefers to prosecute it.
"A full and thorough examination of all the decided cases in this court touching the
question of certiorari and prohibition fully supports the proposition already stated
that, where a, Court of First Instance has jurisdiction of the subject matter and of
the person, its decision of any question pertaining to the cause, however erroneous,
cannot be reviewed by certiorari, but must be corrected by appeal."
I see no reason to override the decision in Herrera vs. Barretto and Joaquin (supra).
Accordingly, I can do no better than to make the language of Justice Moreland my
own. Applying these principles, it is self-evident that this court should not entertain
the present petition and should not grant the desired relief.
FISHER, J., with whom concurs AVANCEA, J., dissenting:

I am in full accord with the view that the remedy of certiorari may be invoked in
such cases as this, but I am constrained to dissent from the opinion of the majority
as regards the meaning of the term "implied contract."
Section 412 of the Code of Civil Procedure, in connection with section 424,
authorizes the preliminary attachment of the property of the defendant: "(1) In an
action for the recovery of money or damages on a cause of action arising upon
contract, express or implied, when the defendant is about to depart from the
Philippine Islands, with intent to defraud his creditors; (2) * * *; (3) * * *; (4) * * *; (5)

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When the defendant has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors."
It is evident that the terms of paragraph five of the article cited are much broader
than those of the first paragraph. The fifth paragraph is not limited to actions arising
from contract, but is by its terms applicable to actions brought for the purpose of
enforcing extra-contractual rights as well as contractual rights. The limitation upon
cases falling under paragraph five is to be found, not in the character of the
obligation for the enforcement for which the action is brought, but in the terms of
article 426, which requires that the affidavit show that "the amount due the plaintiff
* * * is as much as the sum for which the order is granted."
That is to say, when an application is made for a preliminary attachment upon the
ground that the plaintiff is about to dispose of his property with intent to defraud his
creditorsthus bringing the case within the terms of paragraph five of the section
it is not necessary to show that the obligation in suit is contractual in its origin, but
it is sufficient to show that the breach of the obligation, as shown by the facts
stated in the complaint and affidavit, imposes upon the defendant the obligation to
pay a specific and definite sum. For example, if it is alleged in the complaint that
the defendant by his negligence, has caused the destruction by fire of a building
belonging to plaintiff, and that such building was worth a certain sum of money,
these facts would show a definite basis upon which to authorize the granting of the
writ. But if it were averred that the defendant has published a libel concerning the
plaintiff, to the injury of his feelings and reputation, there is no definite basis upon
which to grant an attachment, because the amount of the damage suffered, being
necessarily uncertain and indeterminate, cannot be ascertained definitely until the
trial has been completed.
But it appears that the legislature, although it has seen fit to authorize a preliminary
attachment in aid of actions of all kinds when the defendant is concealing his
property with intent to defraud his creditors, has provided that when the ground of
attachment is that the defendant is about to depart from the country with intent to
defraud his creditors, the writ will issue only when the action in aid of which it is
sought arises from a contract "express or implied." If an attachment were permitted
upon facts bringing the application within the first paragraph of the section in
support of actions of any kind, whether the obligation sued upon is contractual or
not, then paragraph five would by construction be made absolutely identical with
paragraph one., and this would be in effect equivalent to the complete elimination
of the last two lines of the first paragraph. It is a rule of statutory construction that
effect should be given to all parts of the statute, if possible. I can see no reason why
the legislature should have limited cases falling within the first paragraph to actions
arising from contract and have refrained from imposing this limitation with respect
to cases falling within the terms of the fifth paragraph, but this should have no
effect upon us in applying the law. Whether there be a good reason for it or not the
distinction exists.

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Had the phrase "express or implied" not been used to qualify "contract," there
would be no doubt whateVer with regard to the meaning of the word. In the Spanish
civil law contracts are always consensual, and it would be impossible to define as a
contract the juridical relation existing between a person who has lost money at
gaming and the winner of such money, simply because the law imposes upon the
winner the obligation of making restitution. An obligation of this kind, far from being
consensual in its origin, arises against the will of the debtor. To call such a relation a
contract is, from the standpoint of the civil law, a contradiction in terms.
But it is said that as the phrase "express or implied" has been used to qualify the
word "contract," and these words are found in a statute which "speaks the language
of the common law," this implies the introduction into our law of the concept of the
"implied contract" of the English common law, a concept which embraces a certain
class of obligations originating ex lege, which have been arbitrarily classified as
contracts, so that they might be enforced by one of the formal actions of the
common law which legal tradition and practice has reserved for the enforcement of
contract. I cannot concur in this reasoning. I believe that when a technical juridical
term of substantive law is used in the adjective law of these Islands, we should seek
its meaning in our own substantive law rather than in the law of America or of
England. The Code of Civil Procedure was not enacted to establish rules of
substantive law, but upon the assumption of the existence of these rules.
In the case of Cayce vs. Curtis (Dallam's Decisions, Texas Reports, 403), it appears
that the legislature, at a time when that State still retained to a large extent the
Spanish substantive civil law, enacted a statute in which the word "bond" is used. In
litigation involving the construction of that statute, one of the parties contended
that the word "bond" should be given the technical meaning which it had in the
English Common Law. The court rejected this contention, saying
"On the first point it is urged by counsel f or the appellant that the word 'bond,' used
in the statute, being a common law term, we must refer to the common law for its
legal signification; and that by that law no instrument is a bond which is not under
seal. The truth of the proposition that sealing is an absolute requisite to the validity
of a bond at common law is readily admitted; but the applicability of that rule to the
case under consideration is not perceived. This bond was taken at a time when the
common law afforded no rule of decision or practice in this country, and
consequently that law cannot be legitimately resorted to, even for the purpose for
which it is invoked by the counsel for the appellant, unless it be shown that the civil
law (which under certain modifications was at that time the law of the land) had no
term of similar import; for we regard it as a correct rule of construction, that where
technical terms are used in a statute, they are to be referred for their signification to
terms of similar import in the system of laws which prevails in the country where
the statute is passed, and not to another system which is entirely foreign to the
whole system of municipal regulations by which that country is governed. (Martin's
Reports, vol. 3, 185; 7 Martin [N. S.], 162.)"

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Consequently, I believe that in the interpretation of the phrase "contract, express or
implied," we should apply the rules of our own substantive law. The phrase in itself
offers no difficulty. The concept of the contract, under the Civil Code, as a legal
relation of exclusively consensual origin, offers no difficulty. Nor is any difficulty
encounter;ed in the grammatical sense of the words "express" and "implied."
"Express," according to the New International Dictionary is "that which is directly
and distinctly stated; expressed, not merely implied or left to inference." Therefore,
a contract entered into by means of letters, in which the offer and the acceptance
have been manifested by appropriate words, would be an "express contract." The
word "imply," according to the same dictionary, is "to involve in substance or
essence, or by fair inference, or by construction of law, when not expressly stated in
words or signs; to contain by implication; to include virtually,"
Therefore, if I enter a tailor shop and order a suit of clothes, although nothing is said
regarding payment, it is an inference, both logical and legal, from my act that it is
my intention to pay the reasonable value 6f the garments. The contract is implied,
but it is none the less purely co'nsensual. An implied contract, therefore, is that in
which the consent of the parties is implied.
Manresa, commenting upon article 1262 of the Civil Code, says:
"The essence of consent is the agreement of the parties concerning that which is to
constitute the contract * * *. The forms of this agreement may vary according to
whether it is expressed verbally or in writing, by words or by acts. Leaving the other
differences for consideration hereafter, we will only refer now to those which exist
between express consent and implied consent * * *. It is unquestionable that
implied consent manifested by acts or conduct, produces a contract * * *."
If it were necessary to have recourse to the English common law for the purpose of
ascertaining the meaning of the phrase under consideration, we could find many
decisions which gave it the same meaning as that for which I contend.
"An implied contract is where one party receives benefits from another party, under
such circumstances that the law presumes a promise on the part of the party
benefited to pay a reasonable price for the same." (Jones vs. Tucker [Del.], 84
Atlantic, 1012.)
It is true that English courts have extended the concept of the term "contract" to
include certain obligations arising ex lege without consent, express or implied. True
contracts created by implied consent are designated in the English common law as
"contracts implied in fact," while the so-called "contracts" in which the consent is a
fiction of law are called "contracts implied by law." But it is evident that the latter
are not real contracts. They have been called "contracts" arbitrarily by the courts of
England, and those of the United States in which the English common law is in
force, in order that certain actions arising ex lege may be enf orced by the action of
assumpsit. In the rigid formulism of the English common law the substantive right

273
had to be accommodated to the form of action. As is stated in the monograph on
the action of assumpsit in Ruling Case Law (volume 2, p. 743)
"In theory it was an action to recover for the nonperformance of simple contracts,
and the formula and proceedings were constructed and carried on accordingly. * * *
From the reign of Elizabeth this action has been extended to almost every case
where an obligation arises from natural reason, * * * and it is now maintained in
many cases which 'its principles do not comprehend and where fictions and
intendments are resorted to, to fit the actual cause of action to the theory of the
remedy. Tt is thus sanctioned where there has been no * * * real c6ntract, but where
some duty is deemed sufficient to justify the court in imputing a promise to perform
it, and hence in bending the transaction to the form of action."
In the ancient English common law procedure the form of the action was regarded
as being much more important than the substantive right to be enforced. If no form
of action was found into which the facts would fit, so much the worse for the facts!
To avoid the injustices to which this condition of affairs gave rise, the judges
invented those fictions which permitted them to preserve the appearance of
conservatism and change the law without expressly admitting that they were doing
so. The indispensable averment, without which the action of assumpsit would not
lie, was that the defendant promised to pay plaintiff the amount demanded. (Sector
vs. Holmes, 17 Va., 566.) In true contracts, whether express or implied, this promise
in fact exists. In obligations arising ex lege there is no such promise, and therefore
the action of assumpsit could not be maintained, although by reason of its relative
simplicity it was one of the most favored forms of action. In order to permit the
litigant to make use of this form of action for the enforcement of certain classes of
obligations arising ex lege, the judges invented the fiction of the promise of the
defendant to pay the amount of the obligation, and as this fictitious promise gives
the appearance of consensuality to the legal relations of the parties, the name of
implied contract is given to that class of extra-contractual obligations enforcible by
the action of assumpsit.
Now, it is not to be supposed that it was the intention of the Legislature in making
use in the first paragraph of article 412 of the phrase "contract, express or implied"
to corrupt the logical simplicity of our concept of obligations by importing into our
law the antiquated fictions of the mediaeval English common law. If one of the
concepts of the term "implied contract" in the English common law, namely, that in
which consent is presumed from the conduct of the debtor, harmonizes with the
concept of the contract in our law, why should we reject that meaning and hold that
the Legislature intended to use this phrase in the foreign and illogical sense of a
"contract" arising without consent? This is a civil law country. Why should we be
compelled to study the fictions of the ancient English common law, in order to be
informed as to the meaning of the word "contract" in the law of the Philippine
Islands? Much more reasonable to my mind was the conclusion of the Texas court,
under similar circumstances, to the effect that "Where technical terms are used in a

274
statute they are to be referred for their signification to terms of similar import in the
system of laws which prevails in the country where the statute is passed." (Cayce
vs. Curtis, supra.)
My conclusion is that the phrase "contract, express or implied" should be
interpreted in the grammatical. sense of the words and limited to true contracts,
consensual obligations arising from consent, whether expressed in words, writing or
signs, or presumed from conduct. As it is evident that the defendant in the present
case never promised, expressly or by implication, to return the money won from him
in the gambling game in question, his obligation to restore the amount so won,
imposed by the law, is not contractual, but purely extra-contractual, and therefore
the action brought not being one arising upon "contract, express or implied," the
plaintiff is not entitled to a preliminary attachment upon the averment that the
defendant is about to depart from the Philippine Islands with intent to defraud his
creditors, no averment being made in the complaint or in the affidavit that the
defendant has removed or disposed of his property, or is about to depart with intent
to defraud his creditors, so as to bring the case within the terms of the fifth
paragraph of section 412.
I am unable to agree with the contention of the applicant (brief, p. 39) here that the
phrase in question should be interpreted in such a way as to include all obligations,
whether arising from consent or ex lege, because that is equivalent to eliminating
all distinction between the first and the fifth paragraphs by practically striking out
the first two lines of paragraph one. The Legislature has deliberately established
this distinction, and while we may be unable to see any reason why it should have
been made, it is our duty to apply and interpret the law, and we are not authorized
under the guise of interpretation to virtually repeal part of the statute.
Nor can it be said that the relations between the parties litigant constitute a quasi
contract. In the first place, quasi contracts are "lawful and purely voluntary acts by
which the authors thereof become obligated in favor of a third person * * *." (Civil
Code, article 1887.) The act which gave rise to the obligation ex lege relied upon by
the plaintiff in the court below is illicitan unlawful gambling game. In the second
place, the first paragraph of section 412 of the Code of Civil Procedure does not
authorize an attachment in actions arising out of quasi contracts, but only in actions
arising out of contracts, express or implied.
I am therefore of the opinion that the court below was without jurisdiction to issue
the writ of attachment, and that the writ should be declared null and void.
Writ denied; proceedings dismissed.

275

[No. 4089. January 12, 1909.]

ARTURO PELAYO, plaintiff and appellant, vs. MARCELO LAURON ET AL., defendants
and appellees.
1.RECIPROCAL OBLIGATIONS OF HUSBAND AND WIFE; SUPPORT.Among the
reciprocal obligations existing between a husband and wife is that of support, which
obligation is established by law
2.ID. ; SUPPORT OF STRANGERS.The law does not compel any person to support a
stranger unless such person bound himself to do so by an express contract.
3.ID., SUPPORT OF WIFE.Where a husband whom the law compels to support his
wife is living, the father and mother-in-law of the latter are under no liability to
provide for her.
APPEAL from a judgment of the Court of First Instance of Cebu. Wislizenus, J.
The facts are stated in the opinion of the court.
J. H. Junquera, for appellant.
Filemon Sotto, for appellees.
TORRES, J.:

On the 23d 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,

276
Dr. Escao, it was found necessary, on account of the difficult birth, to remove the
ftus by means of forceps which operation was performed by the plaintiff, who also
had to remove the afterbirth, in which service 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 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 allegations
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 there was accidental' and due to fortuitouscircumstances; 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 23d 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 the professional services of the plaintiff be eliminated
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 acknowledged by the defendants, that the plaintiff, by
virtue of having been sent for by the former, attended as 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.

277
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 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 motherin-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 with 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.

278
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 upheld. (Decision of May 1.1, 1897.)
Within the meaning of the law, the father and mother-inlaw 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 considerations 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., concur in the result.
Willard, J., dissents.
Judgment affirmed. [Pelayo vs. Lauron, 12 Phil. 453(1909)]

[No. L-4920.June 29, 1953]

Francisco Diana and Soledad Diana, plaintiffs, and appellants, vs. Batangas
Transportation Co., defendant and appellee.
1.Pleading and Practice; Dismissal and Action; Pending Action Between Same Parties
the Same Cause; "Culpa Aquiliana, Distinguised Civil Liabilities Arising from Crime.
Section 1d of Rule 8 allows the dismissal of a case on the ground that "there is

279
another action pending between the same parties for the same cause." But where
the present case stems from a criminal case in which the driver of the defendant
was found guilty of multiple homicide through reckless imprudence and was ordered
to pay indemnity of P2,000 for which the defendant is made subsidiarily liable under
article 103 of the Revised Penal Code, which the other case is an action for damages
based on culpa aquiliana which underlines the civil liability predicated on articles
1902 and 1910 of the old Civil Code, the two cases involve two different remedies
and the present case should not be dismissed.
2.Negligence; "Cuasi Delitus", Distinguished from Civil Liability Arising from Crime.
"A quasi-delict or culpa aquiliana is a separate legal institution under the Civil
Code, with a substantivity all its own, and individuality that is entirely apart and
independent from a delict or crime. * * * A distinction exists between the civil
liability arising from a crime and the responsibility for cuasidelitos or culpa extracontractual. The same negligent act causing damages may produce civil liability
arising from a crime under article 100 of the Revised Penal Code, or create an action
for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the Civil
Code." (Barredo vs. Garcia and Almario, 73 Phil., 607, 611.)

APPEAL from an order of the Court of First Instance of Laguna. Yatco, J.

The facts. are stated in the opinion of the Court.
Zosimo D. Tanalega for appellants.
Gibbs, Gibbs, Chuidian & Quasha for appellee.
Bautista Angelo,J.:
The present appeal stems from. a case originally instituted in the Court of First
Instance of Laguna wherein plaintiffs seek to recover from defendant as a party subsidiarily liable for the crime committed by an employee in the discharge of his duty
the sum of P2,500 as damages, plus legal interest, and the costs of action.
The appeal was originally taken to the Court of Appeals but the case was certified to
this court on the ground that it poses merely a question of law.
Plaintiffs are the heirs of one Florenio Diana, a former employee of the defendant.
On June. 21, 1945, while Florenio Diana was riding in Truck No. 14, belonging to the
defendant, driven by Vivencio Bristol, the truck ran into a ditch at Bay, Laguna,
resulting in the death of Florenio Diana and other passengers. Subsequently,
Vivencio Bristol was charged and convicted of multiple homicide through reckless
imprudence wherein, among other things, he was ordered to indemnify the heirs of
the deceased in the amount of P2,000. When the decision became final, a writ of
execution was issued in order that the indemnity may be satisfied but the sheriff

280
filed a return stating that the accused had no visible leviable property. The present
case was started when defendant failed to pay the indemnity under its subsidiary
liability under article 103 of the Revised Penal Code. The complaint was filed on
October 19, 1948 (civil case No. 9221) .
On December 13, 1948, defendant filed a motion to dismiss on the ground that
there was another action pending between the same parties for the same cause
(civil case No. 8023 of the Court of First Instance of Laguna) in which the same
plaintiffs herein sought to recover from the same defendant the amount of P4,500
as damages resulting from the death of Florenio Diana who died while on board a
truck of defendant due to the negligent act of the driver Vivencio Bristol. This first
action was predicated on culpa aquiliana.
On December 16, 1948, plaintiffs filed a written opposition to the motion to dismiss.
On February 3, 1949, the lower court; having found the motion well founded, dismissed the complaint, without special pronouncement as to costs ; and their motion
for reconsideration having been denied, plaintiffs took the present appeal.
The only question to be determined is whether the lower court correctly dismissed
the complaint on the sole ground that there was another action pending between
the same parties for the same cause under Rule 8, section 1 (d) of the Rules of
Court.
The determination of this issue hinges on the proper interpretation of Rule 8, section
1 (d) which allows the dismissal of a case on the ground that "there is another
,action pending between the same parties for the same cause." Former Chief Justice
Moran, commenting on this ground, says "In order that this ground may be invoked,
there must be between the action under consideration and the other action, (1)
identity of parties, or at least such as representing the same interest in both actions
; (2) identity of rights asserted and relief prayed for, the relief being founded on the
same facts ; and (3) the identity on the two preceding particulars should be such
that any judgment which may be rendered on the other action will, regardless of
which party is successful, amount to res adjudicata in the action under
consideration." [I Moran, Comments on the Rules of Court. (1952) , p. 168.]
There is no doubt with regard to the identity of parties. In both cases, the plaintiffs
and the defendant are the same. With regard to the identity of reliefs prayed for, a
different consideration should be made. It should be noted that the present case
(civil case No. 9221) stems from a criminal case in which the driver of the defendant
was found guilty of multiple homicide through reckless imprudence and was ordered
to pay an indemnity of P2,000 for which the defendant is made subsidiarily liable
under article 103 of the Revised Penal Code, while the other case (civil case No.
8023) is an action for damages based on culpa aquiliana which underlies the civil
liability predicated on articles 1902 to 1910 of the old Civil Code. These two cases
involve two different remedies. As this court aptly said : "A quasi-delict or culpa

281
aquiliana is a separate legal institution under the Civil Code, with a substantivity all
its own, and individuality that is entirely apart and independent from a delict or
crime. * * * A distinction exists between the civil liability arising from a crime and
the responsibility for cuasidelitos or culpa extra-contractual. The same negligent act
causing damages may produce, civil liability arising from a crime under article 100
of the Revised Penal Code, or create an action for cuasi-delito or culpot, extracontractual under articles 1902-4910 of the Civil Code (Barredo vs. Garcia and Almario, 73 Phil., 607) . The other differences pointed out between crimes and culpa
aquiliana are :
"1.That crimes affect the public interest, while cuasi-delitos are only of private
concern.
"2.That, consequently, the Penal Code punishes or corrects the criminal act, while
the Civil Code, by means of indemnification, merely repairs the damage.
"3.That delicts are not as broad as quasi-delicts, because the former are punished
only if there is a penal law clearly covering them, while the latter, cuasi-delitos,
include all acts in which 'any kind of fault or negligence intervenes.' " (P. 611,
supra.)
Considering the distinguishing characteristics of the two cases, which involve two
different remedies, it can hardly be said that there is identity of reliefs in both
actions as to make the present case fall under the operation of Rule 8, section 1 (d)
of the Rules of Court. In other words, it is a mistake to say that the present action
should be dismissed because of the pendency of another action between the same
parties involving the same cause. Evi- [Diana vs. Batangsas Transportation Co., 93
Phil., 391(1953)]