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NICOLAS LIZARES v.

ROSENDO HERNAEZ
SYLLABUS
1. LANDLORD AND TENANT; DESTRUCTION OF PROPERTY BY FIRE;
RESPONSIBILITY OF LESSEE. When leased property is destroyed by fire, there
arises a presumption, under article 1563 of the Civil Code, against the lessee,
which makes him responsible to the owner for the resulting damages, in the
absence of proof that the loss happened without the lessees fault. But when the
lessee proves that the fire occurred without negligence on his part and that it
could not be arrested by him in the exercise of reasonable care, the presumption
is rebutted and the lessee is not liable.
2. ID.; ID.; ID.; PROOF NECESSARY TO EXONERATE LESSEE. When a question
arises as to the responsibility of a lessee for the loss of the thing leased resulting
from fire, and the trial court finds that reasonable precautions were taken by the
lessee to prevent fires, but that nevertheless a fire did occur, of inescrutable
origin which destroyed the property in spite of all reasonable efforts that could
be put forth to prevent it, this is equivalent to a finding that the lessee was
without fault and that the loss was due to an inevitable cause.
3. ID.; ID.; ID.; CASE AT BAR. The subject of a lease in the case at bar
consisted of a rural estate on which was located a camarin [warehouse],
containing an establishment for the manufacture of sugar from the cane grown
upon the estate. While this sugar mill was being operated according to custom
during the milling season, a fire caught in a stack of bagasse which was placed
near the furnace to be used as fuel. The flames spread with rapidity and
destroyed the camarin and its contents. It appealed that the equipment in the
establishment for arresting fires was such as is commonly maintained in mills of
this kind, and that the force employed in operating the mill was adequate. It did
not appear that the employees present were remiss in their efforts to extinguish
the fire. Held: That the fire in question was casus fortuitus, and that the lessee
was not liable for the value of the property destroyed.
4. ID.; ID.; DUTY OF LANDLORD TO MAKE REPAIRS. The obligation imposed
upon the lessor in the second paragraph of article 1554 of the Civil Code to make
such repairs on the leased property as are necessary in order to keep it in
serviceable condition for the purpose for which it was intended does not extend
to the obligation to reconstruct the property when it has been totally destroyed
by fire. The obligation to make repairs must be understood to apply to the
restoration of property which has deteriorated from use or has been partially
destroyed, without total loss of identity.
5. ID.; ID; DUTY OF LESSEE TO MAKE REPAIRS. A stipulation was inserted in a
contract of lease obligating the lessee to maintain the property in good condition
and to deliver it in the same state to the lessor upon the termination of the
lease. Held: That the contractual obligation thus assumed was substantially
identical with the obligation which would have been imposed by law in the
absence of special stipulation; and the duty thus defined must be considered

subject to the limitations and exceptions recognized by law. The lessee is


therefore not bound to reconstruct the property in case of total loss resulting
from fire which occurred without his fault.
DECISION
The action herein was begun on April 15, 1918, in the Court of First Instance of
Occidental Negros, by the plaintiff, Nicolas Lizares, as lessee of two haciendas,
located in the municipality of Talisay, in the province aforesaid, known
respectively as panaogao and matagoy No. 2, against the defendant, Rosendo
Hernaez, as lessor of said haciendas, to rescind the contract of lease and to
recover a sum of money as damages alleged to have been suffered by the
plaintiff by reason of the failure of the defendant to comply with certain
obligations incumbent upon him under the contract. The defendant answered,
denying all liability, and interposed a counterclaim for the purpose of recovering
damages alleged to have been suffered by him by reason of the default of the
plaintiff in the performance of the obligations of the latter under the same
contract. One of the items of damages thus claimed by the defendant consists of
unpaid rents; and for the purpose of obtaining the satisfaction of this claim, Sra.
Enrica Alunan was named as a party defendant in the cross-complaint, she
having obligated herself jointly and severally with the plaintiff in the contract of
lease, in the character of surety for him. Process was accordingly served upon
her, and she in due time answered the cross-complaint with a general denial.
Both the plaintiff and the defendant seek to recover the attorneys fees and
other expenses of this litigation.
Upon hearing the cause the trial judge rendered a decision, the salient features
of which are these: (1) The contract of lease is declared to be rescinded, with
leave to the plaintiff to make use of the leased property until May 30, 1919, for
the purpose of harvesting the crops planted by him thereon and completing the
milling of the cane. (2) The defendant, Rosendo Hernaez, as lessor, was found to
be liable in damages to the plaintiff, in the sum of P1,736.01, with interest, by
reason of his failure to reconstruct within a reasonable time a camarin which had
existed upon the leased premises but which had been destroyed by fire. (3) The
plaintiff, Nicolas Lizares, was found to be indebted to the defendant for rents due
and unpaid in the sum of P3,583.33, with interest from April 16, 1918; and for
this amount judgment was rendered in favor of the defendant upon the cause of
action stated in the cross-complaint against the plaintiff, Nicolas Lizares, and
Enrica Alunan, as his surety. (4) The plaintiff was further ordered to cause an
artesian well to be bored, before May 30, 1919, on the hacienda Panaogao. in
accordance with a stipulation in the contract of lease. Both parties appealed from
this decision, each manifesting disapproval of such features of the judgment as
were not in conformity with his particular pretensions.
It appears in evidence that on August 21, 1916, the plaintiff, Nicolas Lizares, and
the defendant, Rosendo Hernaez, entered into a contract (Exhibit A), whereby
the former became the lessee of the two haciendas Panaogao and Matagoy No.
2. Among the improvements existing upon the hacienda Panaogao, and which

the plaintiff was entitled to use, was a large iron-roofed camarin, containing
furnaces, boilers, mills, engines, and other apparatus for the manufacture of
sugar.
At about 7 p. m., on March 16, 1918, a fire of unknown origin occurred at this
sugar mill, which destroyed the camarin and greatly damaged the sugar-milling
apparatus. Soon after the fire the plaintiff informed the defendant of the calamity
and made demand upon him for the reconstruction of the camarin. The
defendant refused to recognize the existence of any obligation on his part to
reconstruct the camarin. Insisting that the plaintiff, being the lessee, and not
himself, as lessor, was responsible for the fire and answerable for the damage
occasioned thereby. These antagonistic views presently culminated in the
litigation now before us.
The dominating question, to which attention must first be directed, has reference
to the responsibility for the loss due to the fire. Upon this point it is contended by
the defendant that the plaintiff, Lizares, is chargeable with negligence in more
than one respect, as for instance in not having maintained upon the premises a
fire-fighting equipment reasonably adapted to the needs of the situation and in
not having a competent manager actually present and in charge of the mill at
the time the fire occurred. In addition to this it is said that, after the fire was
discovered, the employees present negligently failed to take proper measures to
put it out.
Upon these points the trial judge found that the fire was of unknown and
accidental origin and that no fault or negligence was attributable to the plaintiff
in regard either to the conditions antecedent to the fire or the manner in which
the flames were resisted. He was, therefore, of the opinion that the loss caused
by the fire was due to casus fortuitus, for the consequences of which no one was
responsible.
As observed in the brief of the defendant, as appellant, there is no evidence
which points out clearly and unmistakably the immediate cause of the fire; but
much proof was taken at the hearing with reference to the conditions under
which the fire occurred and what was done to arrest its progress. Indeed, nothing
seems to have been left undone by either party in the effort to ascertain the
origin of the fire and to fix the responsibility therefor.
In the camarin existing upon the hacienda Panaogao at or about the time the fire
occurred, which was during the milling season, there was a complete set of
apparatus for the manufacture of sugar, consisting of furnaces, boilers, mills, and
other accessory equipment. The laborers were accustomed to begin work in this
camarin at about 4 oclock in the morning and continued on duty until about 8
oclock at night, during which time strong fires were continually kept in the
furnaces for the purpose of heating the boilers containing sugar cane juice.
In maintaining the fires, highly inflammable bagasse, or dry crushed cane, were
used for fuel, heaps of which were stacked along the eastern and northeastern
sides of the camarin. When the fires were burning low, they were stirred by

means of stoking rods, called tulags. These were made of bamboo, the young
and green ones being chosen, as not easily susceptible of ignition. Nevertheless
their frequent contact with the flames and embers in the furnaces naturally
tended to dry them out and make them inflammable. In case these tulags
became ignited they were immersed by the stokers in buckets of water kept
nearby.
The places where the stokers are accustomed to stand in firing furnaces of this
character are called, in the vernacular, cabcaban. These stands consist of
excavations in the ground and are immediately in front of the openings of the
furnaces. It is the duty of the stokers not only to keep the fires going but to be on
the lookout and extinguish any sparks emitted from the furnaces which might
give origin to a conflagration.
The testimony of the plaintiffs witnesses shows that upon the occasion in
question the usual and necessary number of stokers were posted immediately in
front of the openings of the furnaces to guard the fires. Buckets of water were at
hand in which to immerse the burning ends of the stoking-rods (tulags); and
other buckets of water were placed at convenient points for the extinguishment
of flames, if fire should break out in any part of the camarin. The precautions
thus taken were in keeping with those adopted in other sugar mills operated
under similar conditions, and were such as are commonly considered sufficient. It
appears that stoking-rods made of iron are sometimes used instead of the
bamboo tulags, but inasmuch as the iron rods soon got hot and burn the hands
of the stokers these implements are not extensively used for stiring the fires.
Upon the actual occasion of the fire in question the plaintiff was absent on
business in the city of Iloilo, having left Amando Ereeta in charge of the
hacienda. The latter had left the camarin at about 5 p. m. on the date referred to;
and when the fire occurred he was at the corral where the carabaos were kept, a
short distance away from the camarin. Instead of hastening to the fire at once,
after the alarm was given, he remained a little while in the corral in order to get
the animals into a place of safety. Felipe Beldua, apparently next in authority to
Amando Ereeta, and who was engaged in the sugar-boiling department, had left
the camarin at about 4 p. m. in order to get something to eat. As he was
returning to the camarin, and while yet a short distance away, he discerned the
flames rising from a pile of bagasse at the north side of the camarin. He was the
first person to see the fire and at once gave alarm. It should be noted that the
fire did not originate in that part of the bagasse which was lying in closest
proximity to the stoking-stands but a little distance away where it was unnoticed
by the stokers.
When Felipe Beldua left the camarin, two of his assistants remained on duty, and
the evidence shows that other employees, such as the stokers, machinecleaners, and sugar boilers, were busy at work. The stoker Lucas Bendado was
on duty at the cabcacan immediately in front of the opening of the furnaces at
the time the fire occurred. Amando Ereneta, who was first in charge of the

camarin at the time, was employed by the plaintiff to look after the animals, and
his duties were not such as to require him to be continually inside the camarin.
After the fire was discovered, the flames spread with great rapidity, owing to the
highly combustible nature of the bagasse, and the employees, who gathered
around immediately after the ringing of the bell, were unable to stop the
progress of the fire. The suggestion that the employees were undisciplined and
incompetent and that the fire could have been put out if they had been properly
directed is based more or less upon conjecture and is not in our opinion proved.
The stacks of dry bagasse ranged along the eastern and northeastern sides of
the camarin supplied material to the flames which made its extinguishment
impossible.
How the fire originated remains an admitted mystery. Possibly a spark, emitted
from the furnace, had been casually conveyed to the spot where the flame was
kindled, or it is conceivable that it may have been started from the hot end of a
stoking-rod which had been carelessly thrown aside, but this supposition seems
untenable; and after all the origin of the fire is a matter of pure conjecture. Upon
the whole we find no sufficient ground for any revision of the trial courts finding
to the effect that the fire was one of those fortuitous casualties which cannot be
foreseen and for the happening of which nobody can be held responsible.
It is, however, insisted for the defendant that, inasmuch as the cause of the fire
is unknown, the plaintiff, as lessee, is responsible for the loss, under article 1563
of the Civil Code, which declares that the lessee is liable for any deterioration or
loss suffered by the thing leased, unless he proves that it took place without his
fault. The lessee, in order to acquit himself under this provision must, so it is
argued, prove how the fire was caused, and from the known cause the court
must judge whether the loss occurred with or without his fault. We cannot agree
with this contention.
It must be admitted that when a loss of the leased property occurs, there is a
presumption against the lessee, which makes him responsible, in the absence of
proof that the loss happened without his fault. But the question whether there
has been fault on his part must be determined in relation with other provisions of
the Civil Code as well as in the light of the general principles of jurisprudence.
Under article 1561 of the Civil Code the lessee of lands is not responsible for a
loss resulting from inevitable cause; and in article 1106 the general rule is
declared that, in the absence of express provision to the contrary, no one is
liable for events which cannot be foreseen or which, if foreseen, are inevitable.
As applied to the case before us we are of the opinion that when the trial court
found that reasonable precautions had been taken by the lessee to prevent fires,
but that nevertheless fire did occur, of inescrutable origin, which destroyed, the
camarin in spite of all that could be done to prevent it, this equivalent to a
finding that the lessee was without fault and that the loss was in fact due to an
inevitable cause. In other words the presumpting against the lessee is overcome
by proving that the usual and proper care was used to protect the leased
property from fire.

Upon principle the responsibility of the lessee for the property leased is
substantially the same as that of a person who has possession of movable
property belonging to another, as in the case of bailment. It is a well known fact
in legal history that the doctrines of English law applicable to the bailment of
chattels are in great part identical with those developed by the civil law of Rome,
of which indeed the English doctrines may be considered mere emanations. This
circumstance makes it instructive here to refer to the case of Bryan v. Fowler (70
N. C., 596), decided by the Supreme Court of North Carolina.It there appeared
that the plaintiff had sent a quantity of raw cotton to the gin-house of the
defendant, where it was stored for the purpose of being ginned. At one oclock p.
m. on a certain day, while the gin was in ordinary course of operation, with all
hands present, fire was discovered in the lint-room, and as cotton is very
inflammable, almost like powder, it was impossible to extinguish it. The entire
plant was destroyed, including the raw cotton belonging to the plaintiff. The
latter accordingly instituted an action against the owner of the gin-house to
recover the value of the raw cotton which the plaintiff had deposited in the ginhouse. It was insisted for the plaintiff that, inasmuch as the gin-house had been
in operation for a considerable time, and under the same circumstances, and had
never burned down before, it should be concluded that the fire had originated
from some negligent act of the defendant or his servants and that as a
consequence the defendant should be held liable. The Supreme Court of North
Carolina, however, refused to take this view and absolved the defendant, saying:
"When we hear that a mans house has been burned, by which he suffers loss,
the inference is that he did not burn it, but that it was the result of accident, or
the work of an incendiary. And it is hard to believe that he did not use ordinary
care of his own. But grant that . . . it was incumbent on the defendant to show
that he did use ordinary care; then it appears that he did show it. He proved that
it was general orders, that no fire, pipes or matches were to be allowed in the
gin-house, and that none were used. What more could he prove? . . .
"From all the testimony, it is a mystery how the fire occurred. Take it that the fact
of burning made a case of prima facie negligence so as to put it upon the
defendant to show proper and usual care, still we think he did prove due care.
"The evidence raises some suspicion that a friction match may have been carried
to the gin-house in seed cotton, as hands picking out cotton are known to use
matches in the fields. And there was some probability that the seed cotton in the
gin-house took fire spontaneously; as it is known that grassy cotton is liable to
spontaneous combustion, and mashing the seed will grease the cotton.
"But however this may be, there is no evidence of negligence against the
defendant, except the fact of the fire and that he has met by showing that usual
and proper care was used."
In this connection we may be permitted to quote a few words from an
unpublished decision rendered in the First Division of this Court in 1919. 1 If
there appeared that the plaintiff had left a number of photographic films with the
defendant corporation in the city of Manila to be washed and refixed. Two or

three days later a fire occurred in the defendants place of business and
destroyed the films. The Court found upon the proof that the fire was accidental.
In an action brought by the plaintiff to recover the value of the films, we said
"The defendant is, in our opinion, not liable. This was a bailment locatio operis
feciendi cause, which term is applied to that bailment where compensation is
given for labor and service done upon a chattel or in connection with it; as where
cloth is delivered to a tailor to be made into clothes, or where a watch is left with
a jeweler to be mended.
"In this bailment ordinary care and diligence are required of the bailee and he is
not liable for the inevitable loss or destruction of the chattel, not attributable to
his fault. If while the bailment continues, the chattel is destroyed, or stolen, or
perishes, without negligence on the bailees part, the loss, as in other hirings,
falls upon the owner, in accordance with the maxim res perit domino. . ..
"Upon this point the civil and common law are agreed; and we find nothing to the
contrary in the Spanish Civil Code. Article 1183 declares that when a thing is lost
while in the possession of the debtor it shall be presumed that the loss occurred
by his fault and not by fortuitous event in the absence of proof to the contrary.
But where it is found, and the fact is indisputable, as here, that the fire which
destroyed the negatives was accidental, this is equivalent to a finding that the
fire was not attributable to the fault of the defendant and negatives every idea of
negligence on its part with reference to the origin of the fire. This was casus
fortuitus such as to exempt the defendant from liability.
"Article 1183 must be construed in relation with the next preceding article
(1182), which says that the obligation to deliver a thing is extinguished when the
thing is destroyed without the fault of the debtor. . . ."
We now pass to the consideration of a special clause found in the contract of
lease (paragraph 4, [b]), declaring that the lessee shall be obliged, upon his own
account and risk, to make all repairs upon the improvements existing on the
haciendas which were the subject of the lease, and to bear the expense of the
same without right to reimbursement. The attorneys for the lessor, Rosendo
Hernaez, insist that under this provision it was a duty of the lessee, Nicolas
Lizares, at his own expense to restore the camarin after it was destroyed by fire.
On the other hand, it is insisted for the latter that it was the obligation of the
lessor, under subsection 2 of article 1554 of the Civil Code, to make all repairs
necessary to keep the leased property in a service- able condition for the
purpose for which it was intended, and that this obligation involves the duty to
reconstruct the destroyed camarin.
We are of the opinion that neither the articles last cited nor the special provision
of the contract to which reference has been made has any bearing on the
solution of the case. In this connection it will be noted that the obligation
imposed on the lessor by article 1554 is to make repairs (reparaciones). The
obligation fixed upon the lessee by the special provision of the contract is also
limited to repairs (composiciones). From an examination of the two provisions it

is evident that the two different Spanish words used in the sense of repairs
(reparaciones, composiciones) are exactly equivalent; and it is seen that the
obligation imposed by the code on the lessor is transferred by the contract to the
lessee. In both cases, however, the obligation is limited to the making of repairs,
which is a very different thing from reconstruction in case of total loss. The
Spanish terms "reparaciones" and "composiciones," like the English word
"repairs" in its ordinary acceptation, must be understood to apply to the
restoration of things after injury or partial destruction, without complete loss of
identity in the thing repaired. (34 Cyc., 1336, 1337.)
In subsection (d) of paragraph 4 of the contract it is declared to be the duty of
the lessee to maintain the improvements on the haciendas in good condition and
to deliver them in the same state to the lessor upon the termination of the lease.
This is merely a statement of the obligation imposed by law generally upon all
lessees; and the duty thus defined is to be understood as subject to the
limitations and exceptions recognized by law. There is nothing in this provision
which deprives the lessee of the defense arising from the destruction of the
property without his fault.
We are aware that the rule above stated, as applicable in this jurisdiction, is at
variance with the doctrine stated in some of the common law authorities. At an
early day the rule seems to have become fixed in the common law that if a
lessee covenants to repair, to keep in repair, or to surrender the premises in
good repair, he is liable for the destruction of buildings not rebuilt by him, though
the destruction may have been caused by fire or other accident, or by the act of
enemies and without fault on his part. (16 R. C. L., pp. 1085, 1089.) This peculiar
common-law rule, which is applied in contracts of landlord and tenant, supplies
the only instance apparently where the obligation to repair is held to import the
duty to rebuild. Upon principle we consider it incompatible with the spirit which
informs the Civil Code, and especially with the general rule laid down in article
1105. It is true that even under this article a party to any contract may make
himself responsible for loss resulting from fortuitous and inevitable events. But
the provision imposing this obligation should be clearly expressed; and we
cannot hold that the express obligation to make repairs and surrender
the premises in good condition involves the obligation to rebuild in
case of destruction by fortuitous or accidental causes occurring without
the fault of the lessee. The undertaking expressed does not reach to
any such extent. Where the parties to a contract desire to create an
unusual obligation, the expression of intention to that effect should be
clear.
It results in our opinion that there was no positive duty on the part of either the
lessor or lessee to reconstruct the camarin after it had been totally destroyed by
fire; neither can therefore be held liable to the other for any damages which may
supposedly have resulted from the failure to reconstruct. The judgment of the
trial court must therefore be modified by eliminating the item of P1,736.01,
which was awarded to the plaintiff as damages for the failure of the defendant
Promptly to reconstruct the camarin.

The fact should perhaps be here stated that the lessor reconstructed the camarin
after the expiration of a few months, but it was not finished in time to permit of it
is use in milling the remainder of the harvest for the season when the fire
occurred. The trial judge found that the camarin could have been rebuilt within
the period of thirty days from the date of the fire; and the damages awarded are
those which the plaintiff is supposed to have suffered between the date when the
camarin should have been finished and the conclusion of the milling season for
that year. It is contended for the defendant as appellant that the period fixed by
the court for the reconstruction of the camarin was unreasonably short and that
no damages should have been awarded for that season. In view of the
proposition above laid down by us, that the lessor was not bound to rebuild, it is
unnecessary for us to consider the length of time which would reasonably have
been required for the reconstruction of the camarin.
In the orderly discussion of the case it is convenient next to consider the
question of the liability of the lessee for rent, after the fire occurred; for it
appears that the lessee is in arrears to the amount of P1,700, of the stipulated
rent, payable upon February 15, 1918, as well as for all amounts payable under
the contract at later dates. The failure of the defendant to pay these rents
is explained by his claim that the contract should be rescinded and that
damages should be assessed in his favor by reason of the delinquency
of the defendant in the performance of the obligations of the contract
of lease. But as we have found that there was no obligation on the part
of the lessor to rebuild the camarin, it results that the plaintiff is not
entitled either to the damages claimed or to a rescission of the
contract. The lessee is, therefore, liable for the stipulated rent, unless
the destruction of the camarin by fire operates as a matter of law to
absolve him from liability for the rent, in whole or in part.
Upon this point it is obvious that the most to which the lessee could be entitled
in a case of this character would be a possible abatement of the rent, under
article 1575 of the Civil Code, for the period of time intervening between, the
date of the fire and the completion of the reconstructed camarin. But even
supposing that this article could be properly considered applicable to the lease of
this sugar mill in connection with the farm whereon it is placed a question
upon which we need not here express a definite opinion the proof supplies no
data from which we could determine the amount of reduction to which the lessee
would be equitably entitled during the period mentioned. The two haciendas
covered by the lease contain an area of about 250 hectares and the value of the
land for cultivable purposes undoubtedly supplied the chief element of value in
the lease. The lessee has apparently remained in possession of both the
haciendas, and there is nothing to show the proportional rental value of the
camarin in relation with the whole property. This circumstance makes it
unnecessary for us to enter into any discussion of the legal question as to when
the lessee is entitled to an equitable abatement of the rent on account of the
destruction of the improvements on a farm. In passing we may observe that the
civil law is much more favorable to the lessee than the common law as will be
discovered from a perusal of the opinion of the Supreme Court of the United

States in Viterbo v. Friedlander (120 U. S., 707 [30 L. ed., 776]), where the
provisions of the French Code, as reproduced in the Code of Louisiana, are
compared with the common law doctrines with great erudition and copious
learning. The provisions of the Spanish Civil Code apparently occupy a position
between the two extremes.
The contract of lease contains a stipulation with regard to liability for
expenses of possible litigation, which has been the subject of
controversy. Said provision is to the effect that in case litigation arises
by reason of the failure of either party to comply with the contract, the
attorneys fees and other expenses, judicial and extra-judicial, shall be
paid by the person whose delinquency gives rise to the litigations The
trial judge found that both parties were in some respects in default,
and accordingly held that neither could invoke this provision. In the
view we take of the case, the lessor is not in default at all. He is
therefore entitled to recover of the lessee, as the person in default,
proven expenses including the attorneys fee, in the amount of P2,630.
The trial court declared the contract of lease to be rescinded, which action has
been assigned as error by the defendant as appellant. Though technically well
taken, this assignment is overruled, for the reason that the defendant in his brief
expresses his conformity in this feature of the appealed decision and consents
that the order of rescission be affirmed. We will accordingly here act upon the
maxim consencus tollit errorem, and affirm this feature of the case. It may be
added that the right of the defendant to a rescission under the facts proved is
unquestionable. Inasmuch, however, as the period filed by the trial court during
which the lessee might retain possession for the purpose of harvesting and
milling the cane grown on the haciendas has passed, and other crops are
probably now in course of production, it will be the duty of the lower court upon
the return of this record to make such orders as may be necessary to adjust the
rights of the parties in harmony with article 157 of the Civil Code and other
provisions applicable to the case.
The contract of lease also contains a stipulation whereby the plaintiff-lessee
bound himself to cause an artesian well to be bored on the hacienda Panaogao in
the harvest season of 1917-1918. This provision has not been complied with, and
the trial judge included in his decree an order requiring the plaintiff to cause the
well to be opened on or before May 30, 1919, in compliance with the stipulation
referred to. In view of the rescission of the contract, the order for the
performance of this stipulation must be reversed. Ordinarily, in such situation the
lessor would be entitled to compensation in damages for this breach of the
contract but we discover no basis in the proof upon which such damages could
be computed.
In conclusion, the decision appealed from is affirmed in declaring the lease
contract rescinded and in giving judgment in favor of Rosendo Hernaez against
Nicolas Lizares and Enrica Alunan, viuda de Lizares, for rents accrued and
unpaid, with interest, it being further understood, however, that the obligation to

pay rent will continue until possession of the two haciendas is surrendered to the
lessor. The decision is reversed in so far as it awards damages to Nicolas Lizares
against Rosendo Hernaez in the sum of P1,736.01, with interest; and the
defendant is absolved from this part of the judgment. The decision is also
reversed in so far as it requires the plaintiff to construct an artesian well upon
the Panaogao hacienda. It is further ordered that Rosendo Hernaez recover of
Nicolas Lizares and Enrica Alunan, viuda de Lizares, jointly and severally, the
sum of P2,630, as expenses of litigation, with interest at six per cent from
November 14, 1918, the date of the decision in the lower court. (Sec. 511, Cod.
Civ. Proc.)
No special pronouncement will be made as to costs. So ordered.

G.R. No. L-32465

December 20, 1930

LA SOCIEDAD DALISAY, plaintiff-appellant, vs. JANUARIO DE LOS REYES,


defendant-appellee.
G.R. No. L-32466

December 20, 1930.

RAMON BARTOLAZO, plaintiff-appellant,


vs.
LA SOCIEDAD DALISAY, defendant-appellee.
On October 3, 1924, Ramon Bartolazo brought an action against the "Sociedad
Dalisay" in the court of First Instance of Laguna (civil case No. 4179, G. R. No.
32466) for the return of 1,158 cavanes of palay and 27 cavanes of rice or the
value thereof, amounting to P 6,073.50, plus P1,500 as damages, and the costs.
The defendant answered with a general denial, a special defense, and a
counterclaim, praying that it absolved from the complaint, and that the plaintiff
be sentenced to pay it P2,000 as damages and any other sum which the court
may deem just, and the costs. The plaintiff answered the counterclaim denying
the facts alleged therein. Later on, said plaintiff amended clause (e) of paragraph
II, and the first paragraph of the prayer of his complaint.
On February 18,1926, the "Dalisay" brought an action against Januario de los
Reyes in the same court (civil case No. 4582, G. R. No. 32465) for the return of
the goods listed in Exhibit A, attached to the complaint, or, in default thereof, for
the payment of their cash value, plus P4,000 as damages, and the costs. The
defendant, admitting certain paragraphs of the complaint and denying others,

set up special defenses and counterclaim upon two grounds, praying that the
delivery to the owners of 568 cavanes of palay, the sale of 882 cavanes of the
grain for the net amount of P2,239.98, and the delivery of certain items of
Exhibit A to Jacinto Francisco, the defendant's successor be declared justified .He
also asked that he be allowed to recover of the plaintiff the total amount of
P2,811.50 mentioned in his counterclaim and to apply thereto the amount of
P2,238.98 which he had in his possession, and that the plaintiff be sentenced to
pay him the balance of P572.52, with legal interest. Finding that there were
parties in interest not included in the case, the court ordered that they be
summoned, and Matilde Laudato, Paula Carballo, Paz C. de Arambulo, Ricardo
Perlas and Mariano Perlas, and Pablo Perlas, appeared and answered, indicating
their willingness to accept whatever the plaintiff might decide to give them with
respect to the value of the palay belonging to each one of them and saved from
the fire which gave rise to the controversy. The municipality of Santa Rosa,
Laguna, through the provincial fiscal, appeared and alleged that, without
prejudice to any right which it might have against the plaintiff for the burning of
the intermediate school building of the municipality, it was agreeable to receive
its proportionate share of the palay saved from the fire.
In this latter case, Domingo Zavalla filed a third party claim against the plaintiff
entity and the defendant Januario de los Reyes, praying that the "Dalisay" be
ordered to deliver to him the palay belonging to him according to the books of
said entity, or, in lieu thereof, its value at P5 per cavan, with legal interest and
that Januario de los Reyes be ordered to render an account of the palay sold, and
to deliver to him the balance according to the account to be rendered.
The "Dalisay" answered this claim with a general denial and a special defense,
and asked that it be denied.
Later, Ramon Bartolazo, Alfonza Casapang, Teodora Nevalga, Segundo Papagayo,
Segunda Ligaya, and Miguel Lim Ako, appeared as parties with Januario de los
Reyes, claiming their palay or its value from the plaintiff.
According to the bill of exceptions (p.34), when case No. 4582 was again called
for trial, the parties agreed, with the approval of the court, that civil case No.
4179 be considered a third-party claim, and that all the pleadings therein be
deemed presented.
On August 21,1929, the trial court decided both cases, the dispositive part of the
decision reading as follows:
Wherefore, the court hereby adjudges as follows:
1.
Sentencing the "Sociedad Dalisay" to deliver to the above-mentioned
depositors, except to those who have waived their claim, their proportionate
share of the palay which was stored in the warehouse at the time of the fire; that
is 3,572 cavanes, or, in lieu thereof, the value of same at P5 per cavan.

2.
Ordering Januario de los Reyes to pay to the Dalisay the amount of
P2,238.98 the net proceeds of the 882 cavanes of palay saved, after deducting
therefrom his proportionate share of the 3,572 cavanes mentioned above.
3.
Finding that Januario de los Reyes is not entitled to the 170 cavanes of
palay which he claims to have saved; and.
4.
Approving the return of the 568 cavanes of palay placed in sacks identified
by the several owners which were outside the warehouse and saved from the
fire.
Without express pronouncement of costs. (Pages 49 and 50, Bill of Exceptions.)
From this judgment the partnership "Dalisay" appealed, making the following
assignments of error:
1.
The trial court erred in finding that at the time of the fire, there were only
3,035 cavanes of palay in the warehouse, that is 1,017 cavanes less than the
amount that should have been there at the time.
2.
The lower court erred in admitting Exhibit 13, the report of the clerk of the
office of the engineer of the Province of Laguna.
3.
The lower court erred in holding that the manager of the appellant
company made no attempt to save the palay in its warehouse.
4.
The lower court erred in holding that had the company's manager
attempted to save the palay in time, not more than ten per cent would have
been destroyed.
5.
The lower court erred in sentencing the company to deliver to the several
owners of the palay damaged by the fire the amount they had in the warehouse,
after deducing ten per cent as loss, or, in lieu thereof, its value at P5 per cavan,
except to those who had waived their right.
6.
The lower court erred in holding that the appellees and intervenors were
not estopped to claim all of their palay in the company's warehouse at the time
of the fire.
7.
The lower court erred in ordering that from the value of the palay saved
and scorched, amounting to P2,238.98, which Januario de los Reyes was
sentenced to return to the company, there must be deducted his proportionate
share of the 3,572 cavanes of palay for which the company was held responsible.
8.
The lower court erred in failing to sentence the appellee Ramon Bartolazo
to pay the company P6,000 as damages suffered on account of the preliminary
attachment issued by the court at his instance against the company's
property.lawphi1>net
9.
The lower court erred in denying the motion for a new trial filed by the
company in both cases.

The evidence shows the following facts:


That the entity known as "Dalisay" is an industrial partnership legally existing,
located in the municipality of Santa Rosa, Laguna, P. I.; that prior to May 20,
1923, said partnership received in its warehouse located at the place mentioned,
certain lots of palay belonging to several persons; that early on the morning of
that day, May 20, 1923, a fire broke out in said warehouse which at that time
contained thousands of cavanes of palay, the exact number being disputed, and
568 cavanes outside; that 1,052 cavanes of palay stored in the warehouse were
saved, and that the 568 cavanes of palay outside of the warehouse were all
saved. The lower court failed to find that the fire was intentional, or was caused
by the negligence of the officials of the plaintiff company, and from these
findings no appeal proper in form has been taken, for which reason, they must be
accepted as indisputable.
Of the 1,052 cavanes saved from the warehouse, 170 were distributed by way of
remuneration among those who helped to save them. The remaining 882
cavanes of palay were hulled and sold, yielding the net sum of P2,238.98.
The appellant contends that there were 4,620 cavanes of palay inside the
warehouse at the time of the fire. The appellees allege in their brief that there
should have been 4,620 cavanes in the warehouse at the time of the fire, but
that, as a matter of fact, there were only 2,284 cavanes of palay.
The trial court found that there were only 3,035 cavanes of palay at the time,
and this finding is assailed in the first assignment of error, which shall be
considered together with the second.
In order to arrive at such a conclusion, the trial court took into account the ocular
inspection and certain testimonies. It should be remembered that such ocular
inspection was made over four years after the fire occurred by Judge Recto, who
is not the judge who decided this case, but Judge Jugo. The judge should have
based the finding of 3,035 cavanes upon the report, Exhibit 13, wherein the
exact number is given; but it happens that said report, objected to, and admitted
with due exception, is neither competent nor admissible evidence, for neither is
it a deposition taken in accordance with the law, nor has the appellant been
given an opportunity to cross-examine the person making it. The parol evidence
on the point is insufficient. At any rate, in considering this matter, due credit
should be given to the testimony of Valeriano Tatlonghari, subpoenaed by Judge
Recto on the occasion of the ocular inspection, and according to which, the
warehouse was divided into three compartments which contained palay at the
time of the fire, designated in said inspection under No. 6, and which were not
taken into account either by the clerk Pabello in his report Exhibit 13, or by the
judge in his decision.
The first two assignments of error are well taken.
As to the third, we have examined the record and find with preponderance of
evidence that the manager of the appellant company attempted to save the

palay in the warehouse. Witnesses Jose Zavalla and Hipolito Alibudbud have so
declared, besides the manager, Perlas, himself, whom the court did not believe
on account of finding various contradictions in his testimony touching certain
remarks made by a woman called Honoria Zerrate, who advised him not to
remove the palay during the fire in order to avoid a greater loss by fire. Aside
from the fact that such contradictions have, to our mind, been sufficiently
explained by the witness Perlas, even supposing them to exist, they cannot have
the effect of discrediting said witness in all respect, including his testimony with
regard to his efforts to save the palay .Nor can such contradictions, if present,
destroy the credibility of the other witnesses, such as Zavalla and Alibudbud.
The evidence leads us to believe that the third assignment of error is well taken.
With regard to the fourth and fifth assignments of error which are a consequence
of the third and which we also deem well founded, suffice it to say that inasmuch
as the fire, according to the judgment appealed from was neither intentional nor
due to negligence of the appellant company or its official; and it appearing from
the evidence that the then manager of said company promptly ran to the fire and
attempted to save the palay, said fourth and fifth assignments of error should
also be deemed established.
The sixth assignment of error has no merit. The resolution No. 1, Exhibit D, does
not constitute estoppel to the claim set up in these cases by the appellees and
intervenors, for it is different from that provided in section 333, No. 1, of the
Code of Civil Procedure.
The seventh assignment of error refers to the deduction to be made from the
amount which Januario de los Reyes was, by the judgment appealed from,
ordered to return to the partnership. There is not sufficient reason to order said
deduction, it appearing that all the palay deposited in said warehouse, according
to the receipts, was there at the time of the fire, and all that grain was burned
except the portion saved, and it further appearing, in our opinion, that there was
no negligence on the part of the manager, Perlas in saving the palay.
There is no merit in the eight assignment of error for the evidence does not
sufficiently show the damages alleged by the appellant company as a
consequence of the preliminary attachment of its property.

The ninth assignment of error is a consequence of the preceeding ones.


Although the appellees did not take an appeal, they have assigned errors to the
judgment appealed from, which are not substantiated by the evidence.
It is contended that the appellant has not alleged that the palay burned was
destroyed without negligence on its part. The fact is, the appellant in its special
defense alleged that the palay was burned .There was no need to make such an
allegation for the presumption is that every person is deemed innocent of crime

or wrong, and that he takes ordinary care of his own concerns. (Nos. 1 and 4,
section 334, Code of Civil Procedure.)
As to the trial court not having found the fire in question to be intentional or the
result of negligence on the appellants part, the evidence supports the said
court's finding, in that it does not show sufficiently that the fire was intentional,
or was due to negligence on the part of the "Dalisay" partnership, or of the
manager Perlas.
The lower court acted correctly in not adjudicating said 170 cavanes of palay to
Januario de los Reyes; and the only reason which would justify said adjudication
would be a statement to that effect from Ricardo Perlas, which he could not
make, because said palay belonged neither to him nor to the company.
Wherefore, the judgment appealed from is modified absolving the appellant
company form distributing or returning to the appellees any quantity of palay, or
the value thereof, except that saved from the fire, amounting to P2,238.98,
which sum is to be distributed by said company among the depositors mentioned
in the dispositive part of the judgment, in proportion to the amount of palay
which each of them had in the warehouse at the time of the fire; and this
distribution shall be made as soon as Januario de los Reyes delivers to said
appellant partnership, without any deduction, the aforesaid sum of P2,238.98,
comprising the net proceeds of the palay saved. In all other respects the
judgment appealed from is affirmed without express pronouncement of costs. So
ordered.

G.R. No. 2980


SYLLABUS

January 2, 1907 - ANICETA PALACIO v. DIONISIO SUDARIO

1. LOSS OF PROPERTY ENTRUSTED TO ANOTHER. When cattle taken for


pasturage are claimed to have perished, the burden of explaining the loss rests
upon the person pasturing them.
2. PRESCRIPTION. In an action arising before the present Code of Civil
Procedure with into effect, the rule of prescription to be applied is that under the
Civil Code.
DECISION
At an interview at which were present the defendant and three herdsmen, the
plaintiff made an arrangement for the pasturing of eighty-one head of cattle, in
return for which she was to give one-half of the calves that might be born and
was to pay the defendant one-half peso for each calf branded. On demand for
the whole, forty-eight head of cattle were afterwards returned to her and this
action is brought to recover the remaining thirty-three.
It is claimed as a first defense that arrangement was made between the plaintiff
and the herdsmen, the defendant, who was president of the municipality,
tendering his good offices only. Upon this question, the finding of the court below
is conclusive in favor of the plaintiff and is fully justified by the proofs, especially
by a letter of the defendant in reply to the demand for the cattle, in which he
seeks to excuse himself for the loss of the missing animals.
As a second defense it is claimed that the thirty-three cows either died of disease
or were drowned in a flood. As to this point, on which the trial court has made no
specific finding, the proof is conflicting in many particulars and indicates that at
least some of these cattle were living at the time of the surrender of the fortyeight head. The defendants witnesses swore that of the cows that perished, six
die from overfeeding, and they failed to make clear the happening of any flood
sufficient to destroy the others.
If we consider the contract as one of deposit, then under article 1183 of the Civil
Code, the burden of explanation of the loss rested upon the depositary and under
article 1769 the fault is presumed to be his. The defendant has not succeeded in
showing that the loss occurred either without fault on his part or by reason of
caso fortuito.
If, however, the contract be not one strictly of deposit but one according to local
custom for the pasturing of cattle, the obligations of the parties remain the
same.
The defendant also sets up the six years statute of limitation, under section 43
of the present Code of Civil Procedure. This action, having arisen before that
code went into effect, is governed by the provisions of preexisting law (sec. 38)
under which the prescription was one of fifteen years. (Civil Code, art. 1964.)
The judgment of the court below is affirmed with the costs of both instances.
After expiration of twenty days let judgment be entered in accordance herewith

and ten days thereafter the case remanded to the court from whence it came for
execution. So ordered.
<br /><br />007 Phil 275
G.R. No. L-6913

November 21, 1913

THE ROMAN CATHOLIC BISHOP OF JARO, plaintiff-appellee,


vs.
GREGORIO DE LA PEA, administrator of the estate of Father Agustin de la
Pea, defendant-appellant.
This is an appeal by the defendant from a judgment of the Court of First Instance
of Iloilo, awarding to the plaintiff the sum of P6,641, with interest at the legal
rate from the beginning of the action.
It is established in this case that the plaintiff is the trustee of a charitable
bequest made for the construction of a leper hospital and that father Agustin de
la Pea was the duly authorized representative of the plaintiff to receive the
legacy. The defendant is the administrator of the estate of Father De la Pea.
In the year 1898 the books Father De la Pea, as trustee, showed that he had on
hand as such trustee the sum of P6,641, collected by him for the charitable
purposes aforesaid. In the same year he deposited in his personal account
P19,000 in the Hongkong and Shanghai Bank at Iloilo. Shortly thereafter and
during the war of the revolution, Father De la Pea was arrested by the military
authorities as a political prisoner, and while thus detained made an order on said
bank in favor of the United States Army officer under whose charge he then was
for the sum thus deposited in said bank. The arrest of Father De la Pea and the
confiscation of the funds in the bank were the result of the claim of the military
authorities that he was an insurgent and that the funds thus deposited had been
collected by him for revolutionary purposes. The money was taken from the bank
by the military authorities by virtue of such order, was confiscated and turned
over to the Government.
While there is considerable dispute in the case over the question whether the
P6,641 of trust funds was included in the P19,000 deposited as aforesaid,
nevertheless, a careful examination of the case leads us to the conclusion that
said trust funds were a part of the funds deposited and which were removed and
confiscated by the military authorities of the United States.
That branch of the law known in England and America as the law of trusts had no
exact counterpart in the Roman law and has none under the Spanish law. In this
jurisdiction, therefore, Father De la Pea's liability is determined by those
portions of the Civil Code which relate to obligations. (Book 4, Title 1.)
Although the Civil Code states that "a person obliged to give something is also
bound to preserve it with the diligence pertaining to a good father of a family"
(art. 1094), it also provides, following the principle of the Roman law, major

casus est, cui humana infirmitas resistere non potest, that "no one shall be liable
for events which could not be foreseen, or which having been foreseen were
inevitable, with the exception of the cases expressly mentioned in the law or
those in which the obligation so declares." (Art. 1105.)
By placing the money in the bank and mixing it with his personal funds De la
Pea did not thereby assume an obligation different from that under which he
would have lain if such deposit had not been made, nor did he thereby make
himself liable to repay the money at all hazards. If the had been forcibly taken
from his pocket or from his house by the military forces of one of the combatants
during a state of war, it is clear that under the provisions of the Civil Code he
would have been exempt from responsibility. The fact that he placed the trust
fund in the bank in his personal account does not add to his responsibility. Such
deposit did not make him a debtor who must respond at all hazards.
We do not enter into a discussion for the purpose of determining whether he
acted more or less negligently by depositing the money in the bank than he
would if he had left it in his home; or whether he was more or less negligent by
depositing the money in his personal account than he would have been if he had
deposited it in a separate account as trustee. We regard such discussion as
substantially fruitless, inasmuch as the precise question is not one of negligence.
There was no law prohibiting him from depositing it as he did and there was no
law which changed his responsibility be reason of the deposit. While it may be
true that one who is under obligation to do or give a thing is in duty bound, when
he sees events approaching the results of which will be dangerous to his trust, to
take all reasonable means and measures to escape or, if unavoidable, to temper
the effects of those events, we do not feel constrained to hold that, in choosing
between two means equally legal, he is culpably negligent in selecting one
whereas he would not have been if he had selected the other.
The court, therefore, finds and declares that the money which is the subject
matter of this action was deposited by Father De la Pea in the Hongkong and
Shanghai Banking Corporation of Iloilo; that said money was forcibly taken from
the bank by the armed forces of the United States during the war of the
insurrection; and that said Father De la Pea was not responsible for its loss.
The judgment is therefore reversed, and it is decreed that the plaintiff shall take
nothing by his complaint.

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