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[G.R. No. 3527. September 23, 1907. ]

TAN TIOCO, Plaintiff-Appellee, v. MARCELINA LOPEZ, Defendant-Appellant.

Luis Ledesma for Appellant.

Rothrock & Foss for Appellee.


1. SALE AND DELIVERY; SUBSIDIARY LIABILITY. — Held, That when A delivers goods to B upon the order of C, C is only liable subsidiarily, and that all remedies for the collection from B of the amount due must be exhausted before action will lie against C.



The subject-matter of the complaint is certain sums of money owing to the plaintiff, Tan Tioco, on account of some rice sold by him to Roque Lopez, and for money loaned to Marciano Jardenil, to the extent of 524.31 pesos. The plaintiff acknowledges having received payment of 179.37 pesos; leaving a balance of 344.91 pesos, the amount asked for in the complaint, with legal interest from January 29, 1901.

The court below in its judgment ordered the defendant, Marcelina Lopez, to pay 312.51 pesos, with legal interest from February 1, 1901. The defendant appealed from this judgment, the corresponding bill of exceptions was presented to this court, and the appellant has the right to a review of the evidence adduced during the trial.

The allegations of the complaint are:chanrob1es virtual 1aw library

1. That on September 27, 1900, Roque Lopez received some rice from Tan Tioco, for which he issued a vale in the following terms: "Vale for fifty piculs of second-class white rice, in favor of the Chinese Tiua on account of Marcelina Lopez. — R. Lopez. — Price $5 133/10 a picul — $271.88."cralaw virtua1aw library

2. That on October 23, 1900, he issued another document reading as follows: "Vale for one picul of rice, second-class white. — R. Lopez. — $5.31."cralaw virtua1aw library

3. That on October 30, 1900, he signed another document, which reads as follows: "Vale for forty piculs second-class white, in favor of the Chinese Tan Tioco. — Lopez. — (@ $52/8 — $210 — % Marcelina Lopez."cralaw virtua1aw library

4. That on November 5, 1900, he signed the following vale: "Vale for one picul rice No. 1 and three piculs Chinese tabao, in favor of the Chinese Tan Tioco, on account of the undersigned. — R. Lopez. — $22.12."cralaw virtua1aw library

5. That on November 21, 1900, Marciano Jardenil issued a document of the following tenor: "Vale for the sum of ten pesos fuertes in favor of the Chinese Tan Tioco on account and by order of Marcelina Lopez. — Marcia Jardenil."cralaw virtua1aw library

All the allegations set up in the complaint having been denied, and all the vales above referred to having been produced at the trial as evidence in favor of the plaintiff, the court admitted as competent the evidence of allegations No. 1, 3, and 5, and rejected that referring to allegations No. 2 and 4.

It appears from the record:chanrob1es virtual 1aw library

1. That, although at first the court below did not admit all the said vales issued and signed by Roque Lopez and Marciano Jardenil, respectively, as evidence against the defendant Marcelina Lopez, yet the same were admitted afterwards in view of further documental evidence, consisting of a letter, acknowledged by the defendant, which reads as follows: "Sir: — To Chinese Tiua. — Jaro, September 25, 1900. — My dear Chinese Tiua. — Kindly give some rice to my nephew Roque Lopez, who will deliver some lumber in rafts (que entregara el balsas de madera). Yours truly. — Marcelina Lopez. — 50 piculs second-class current rice."cralaw virtua1aw library

2. That Marcelina Lopez declared that the Chinese did not know Roque Lopez, and the latter asked her for a recommendation; that she did not give Roque Lopez any authority to sign vales in favor of the Chinese Tan Tioco on her account and by her order; that she had nothing to do with the letter and delivery of the lumber; that Roque Lopez had told her nothing about the rice received; that "it is stated in her letter that he (Roque Lopez) would pay the Chinese with logs, because the Chinese had an interest in some logs;" and that, when she wrote the letter, Roque Lopez and Marciano Jardenil, whom she believed to be partners, were already cutting timber; and that it is true that she wrote in said letter, under her signature, "that line:" — "50 piculs second-class current rice."cralaw virtua1aw library

3. That Roque Lopez testified that he took the rice on his own account, having asked his aunt, the defendant, for a letter of recommendation because the Chinese Tan Tioco did not know him, but he did not tell the latter that he was authorized by his aunt to obtain rice on her account; that he made out the vale saying: "On my own account," and that, on seeing it the Chinaman said: "No, put it on account and by order of Marcelina," and "then [the witness said] I protested, saving that Marcelina had given me no authority to sign for her; but the Chinese replied: ’Sign that, and I will give you the rice;’ and, as the boat was getting ready to sail for Negros, in order to take advantage of that opportunity, I changed the vale so as to read: ’On account and by order of Marcelina Lopez;" ’ but he denies having placed at the bottom of the vale (allegation No. 2) the note "on account of Marcelina Lopez."cralaw virtua1aw library

4. That Tan Tioco declared that he sold the rice to Roque Lopez on account of the defendant, inasmuch as he has no account with the witness Roque Lopez; "that Roque Lopez told him, when he took the rice, that they would bring some rafts of lumber on the return of the boat in payment; that the price of the rice would be paid with the lumber which they would bring on the return of the boat," and that "he spoke to Marcelina, telling her that, if on the return of the boat they did not pay him, he would collect the amount from her;" that Roque Lopez told him that, on return of the lorcha, when the lumber was sold, they would pay him with the proceeds of the sale. On being asked: "Did you tell Marcelina Lopez that, should Roque Lopez not deliver any lumber, you would collect that amount from her? — he replied. "I think that it was two or three days after he took the rice that I told her that. Q. Only after he took the 50 piculs? A. Yes. And after he took the rice on another day I gave her a detailed statement of the goods taken by him. Q. When you delivered that to Marcelina Lopez, what did she answer you? — A. wait, and you will be paid for this Q. Did she say that she would pay for it, or that she would endeavor to have it paid you? — A. That she would endeavor to have it paid;" and finally he said that the note placed on the bottom of the vale mentioned in allegation No. 2 of the complaint was not made by Roque Lopez, but by Marciano Jardenil, although the former was there at the time with the latter.

The court below did not sentence the defendant to pay the amounts expressed in the two vales mentioned in allegations Nos 2 and 4, for $5.31 and $22.12; it has considered, however, as obligations binding upon the defendant, and contracted by her, those contained in the vales (allegations Nos. 1, 3, and 5), that is, the price of the 50 piculs of second-class current rice, and of the 40 piculs second-class white taken by Roque Lopez, and the $10 loaned to Marciano Jardenil.

Regarding these obligations, we consider that there is no reason to compel Marcelina Lopez to pay the price of the 40 cavanes of second-class white rice, taken by Roque Lopez, nor the 10 pesos borrowed by Marciano Jardenil, inasmuch as the terms of the letter addressed by Marcelina Lopez to Tan Tioco, dated September 25, 1900, relating only to 50 cavanes second-class white rice which Roque Lopez might take, can not be made to include the two other persons mentioned.

As to the 50 cavanes of rice to which this letter refers there is some doubt, according, to its terms, whether the sentence "who will deliver some lumber in rafts" (que entregara el balsa de maderas) indicates who is the person that must pay, that is, a third person as the true person obliged, or expresses only a form of payment on the part of the principal; in other words, whether the letter is a mere recommendation in favor of Roque Lopez, or is, on the contrary, an order, by virtue of which Marcelina Lopez would receive the rice and would herself pay the price thereof with rafts of lumber which Roque Lopez would deliver, or is an order given for the profit of the agent and a third person

We consider that the contract resulting is the one expressed in law 22, title 12, of the 5th Partida, which is the immediate legal precedent of the Civil Code in force, which contract is stated in the following terms: "Mandates of the fifth class are those wherein a man orders another to do or to give something in favor only of him who receives the order and of a third person. As, for example, where one orders another to give his money to a third person on interest. In such a case, if the one who gave the money can, not recover the same from the one who received it, the former can recover the money afterwards from the one who ordered him to give the money."cralaw virtua1aw library

The order Dele usted (give him was given by Marcelina Lopez to Tan Tioco for the profit of the agent only, who was to receive the profit on the price of the rice, and for the profit of a third person, Lopez, who wished to get some rice. The obligation to pay, therefore, rests principally upon the third person, Roque Lopez, and subsidiarily, on default of payment on the part of the latter, on the principal, Marcelina Lopez.

The meaning of the phrase que entregara, el en balsas le madera, is explained by the plaintiff himself in his declaration in which he says that Roque Lopez had informed him, on taking the rice, that they, Roque Lopez and Marciano Jardenil, would bring some lumber rafts on the return of the lorcha, and "that they would pay him;" and he said again that "Roque Lopez told him that, on the return of the lorcha, when the rafts were sold, they would pay him with the value of the lumber," adding that two or three days afterwards "he spoke to Marcelina and told her that, should they not pay him on the return of the lorcha, he would recover the amount from her." It is, therefore, evident that, on accepting the contract, the plaintiff did not consider Roque Lopez as a mere agent of the defendant, as if the latter were the only party obliged under the terms of the letter, but that he understood from the language of the letter that Roque Lopez was primarily responsible for the payment of the rice, as that Marcelina Lopez was responsible subsidiarily for Roque Lopez, on account of her having so said and given the order expressing the quantity of rice to be delivered to him, all in conformity with the above-mentioned Law of Partidas, which determines very distinctly the effects of a contract executed in such a way. Should the agent be unable to recover from the one who received the thing, he can require payment afterwards, "from the one who ordered him to give it."cralaw virtua1aw library

The action, therefore, has not been properly brought.

By virtue thereof, and only upon the grounds expressed, we reverse the judgment appealed from, without costs. So ordered.

Torres, Johnson, Willard and Tracey, JJ., concur.

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