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[G.R. No. L-3584. September 30, 1907. ]

ARTADI & CO., Plaintiff-Appellee, v. CHU BACO, Defendant-Appellant.

Jose Varela y Calderon, for Appellant.

Frank E. Green, for Appellee.


1. PLEADING AND PRACTICE; MOTION FOR NEW TRIAL. — An order of court denying a motion for a new trial on the ground of accident or surprise is not subject to exception. (Sec. 146, Code of Civil Procedure.)

2. ID.; ID.; REVIEW OF EVIDENCE. — If no motion for a new trial is made on the ground of the insufficiency of the evidence, this court can not review the evidence on appeal.

3. DEBTS AND DEBTORS; ACTION. — Where by a lawful agreement a debt is made payable by installments, recovery can only be had for the installments actually due and payable when the action is commenced.



The defendant moved for a new trial in the court below on the grounds of accident and surprise. The record before us does not show that this motion was decided by the court. Even if it had been denied, the order denying it would not be subject to exception. (Code of Civil Procedure, sec. 146.)

The defendant made no motion for a new trial on the ground of the insufficiency of the evidence. We can not, therefore, review that evidence upon this appeal.

Within four days after the entry of judgment, the defendant announced that he would present a bill of exceptions and that he appealed from the judgment. This constituted a sufficient exception thereto.

The only question to be resolved is whether the findings of fact contained in the decision support the judgment for the plaintiff. Those facts, so far as they are important, are as follows:jgc:chanrobles.com.ph

"This is an action to recover the sum of P7,101,43 alleged to be due as the balance of a running account between the plaintiff and the defendant. The latter does not seriously deny the debt but claims that it is not yet due. It appears, however, that on October 21, 1905, he approved an account showing a balance in the amount now claimed and that a few days later he signed an instrument which required him to pay a somewhat larger amount in installments of P600 monthly, and as it is conceded that both the account and the instrument relate to the same debt it is apparent that even if the account be not considered as fixing due by virtue of the terms of the instrument even had the monthly payments been kept up, which they have not. Moreover, where the parties fail to fix a period for the maturity of the obligation the court is authorized to do so. (Civil Code, art. 1128.)"

Upon these facts judgment was entered in favor of the plaintiff for P7,101.43, with costs.

This judgment can not be sustained. It appears from the decision that some time after October 21, 1905, the parties made an agreement by which the defendant promised to pay the debt here in question in installments of P600 a month. This action was commenced on the 3d day of November, 1905. In no event at that time could more than two installments of the debt have become due, and even if anything at all could be recovered under the complaint in this action, in view of the facts found by the court that recovery would necessarily be limited to these two installments. (Compañia General de Tabacos, v. Araza, 7 Phil. Rep., 453.)

Under the circumstances of this case, we think the ends of justice require a new trial rather than a judgment of acquittal. The judgment of the court below is reversed, without costs to either party in this court, and the case remanded for a new trial. So ordered.

Arellano, C.J., Torres, Johnson, and Tracey, JJ., concur.

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