Home of ChanRobles Virtual Law Library

PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[G.R. No. 1794. November 6, 1906. ]

FAUSTINO LICHAUCO, Plaintiff-Appellant, v. FRANCISCO MARTINEZ, Defendant-Appellee.

Del-Pan, Ortigas & Fisher, for Appellant.

Agoncillo & Ilustre, for Appellee.

SYLLABUS


1. GAMBLING DEBT; PROMISSORY NOTE. — Money lost at a prohibited game can not be recovered though the loser deliver to the winner his note for the amount lost.

2. ID.; ID.; ASSIGNEE. — An assignee of such note who took it after it became due has no more rights than his assignor.

3. CONTRACT; CONSIDERATION. — Where the consideration stated in a contract is illegal the burden of proof is on the plaintiff to show a legal consideration. (Art. 1276, Civil Code.)

4. PROHIBITED AND NONPROHIBITED GAMES; BURDEN OF PROOF. — Where a sum of money is lost at the game of monte, a prohibited one, and burro, a game not prohibited, there can be no recovery for the amount lost at burro unless the plaintiff proves what that amount was.

5. GAMBLING DEBT; PROMISSORY NOTE. — Where the defendant lost money to various players and at the end of the game gave to one of them his note for the entire amount lost, this did not constitute a loan of money by the person who received the note to the loser of the amounts won by the other players, but rather an assignment to him of their claims.


D E C I S I O N


WILLARD, J.:


The defendant, Martinez, lost 22,000 pesos at monte and burro in the house of one Maria Elson, in Ermita, Manila, in one day’s playing in the month of August. At the termination of the game he made a promissory not for 22,000 pesos, payable to Mateo Alba, one of the players, and delivered the same to him. On the 6th of August, 1902, Martinez executed a document before a notary public in which he stated:jgc:chanrobles.com.ph

"Primero. Que necesitando el exponente determinada suma de dinero para ciertos fines que no son del caso consignar, el mismo acudio al otro compareciente en solicitud de que ello conste de modo fehaciente formaliza la presente escritura en cuya virtud solemnemente otorga: Que declara y reconoce ser en deber a D. Mateo Alba y Tanag la cantidad de veintidos mil pesos mejicanos, que con anterioridad a este otorgamiento ha recibido de dicho senor, en calidad de prestimo simple, y en efectivo metalico contado a su entera satisfaccion; por cuya suma formaliza a su favor, la carta de pago mas firme y eficaz que a su derecho y seguridad convenga. Segundo. Que lsa indicada cantidad prestada no devenga interes alguno y obligandose el otorgante a devolver o reintegrar el citado capital prestado al nombrado D. Mateo Alba dentro del termino de seis meses contados desde esta fecha."cralaw virtua1aw library

This document was delivered to Mateo Alba and the pagare which had been given by Martinez on the night of the playing was destroyed by the notary. The notarial document was executed to take the place of the pagare and the only consideration therefor was the money lost in the game aforesaid.

On the 12th of August, 1902 the defendant, Martinez, lost 16,000 pesos playing burro and monte in the house of Dr. Bustamante in Manila. When the game was terminated he executed and delivered to Mateo Alba a document of which the following is a copy:jgc:chanrobles.com.ph

"Por $16,000.

"Pagare en virtud del presente en Manila a seis meses de la fecha a la orden D. Mateo Alba la cantidad de diez y seis mil pesos mex valor recibido en efectivo del mismo, sin ningun interes para operaciones de Comercio. Manila 12 de Agosto de 1902. — Francisco Martinez. Rubricado.

This pagare was given for the amount of money so lost as aforesaid.

Prior to the 12th of day June, 1903, Martinez paid to Alba on two different occasions 150 pesos on account of this indebtedness, and on each occasion received from Alba a receipt for 3,000 pesos. On the said 12th day of June, 1903, Mateo Alba, by an instrument in writing, assigned and transferred to the plaintiff, Faustino Lichauco, the two documents above referred to and all his interest therein, stating that there had been paid thereon 6,000 pesos. Five days thereafter — that is to say, on the 17th of June, 1903 — plaintiff commenced this action against Martinez to recover the amount due on said two obligations with the interest thereon. The defendant answered, alleging that the documents were given for money lost at gaming and that the amount thereof could not be recovered. Judgment was entered in favor of the defendant, the plaintiff moved for a new trial on the ground that the evidence was not sufficient to justify the decision and, his motion having been denied, he brought the case here by bill of exceptions.

It is the settled doctrine of the court that money lost at a prohibited game can not be recovered, although the loser executes and delivers to the winner his promissory note therefor. (Palma v. Cañizares, 1 Phil. Rep., 602; Escalante v. Francisco, 2 Phil. Rep., 650; De la Rama v. Lacson, 1 2 Off. Gaz., 469.)

It is claimed by the plaintiff and appellant that he can recover, although his assignor could not. Our attention has not been called to any provision of the Spanish law which allows this. The decisions cited from the courts of the United states relate to cases in which a negotiable instrument was transferred before maturity. Of the two documents in this case, one was not a negotiable instrument and both of them were acquired by the plaintiff after they became due.

It also claimed by the appellant that of the two games played of these two occasions, burro is not prohibited and that a recovery can be had of money won at that game. That burro is not a game suerte, envite, o azar has been decided by this court in these case of Reyes v. Martinez, 1 No. 1724, decided December 11, 1905. Monte is, however, a prohibited game. In order that the appellant can recover for the amount won at burro, it must appear what that amount was. Article 1276 of the Civil Code provides as follows:jgc:chanrobles.com.ph

"The statement of a false consideration in contracts shall render them void, unless it be proven that they were based on another real and licit one."cralaw virtua1aw library

In the present case the consideration expressed in each one of these documents is false. Article 1276 is, therefore, applicable, but this did not by the terms of said articles prevent the presentation of proof showing that there was upon the plaintiff to show that there was a lawful consideration, and to show what part of these amounts was won at the game of burro. He did not do this. Martinez, the defendant, testified that he could not say how much he lost at each one of these games. As to the game played in Ermita, the only other witness was Mariano Romero. He testified that more time was spent playing burro than playing monte; that he believed that Martinez lost much in burro and perhaps little at monte, but he could not state approximately, but even this testimony is destroyed by his further statement that he left the house about 4 in the afternoon, long before the game was finished. As to the game in the house of Dr. Bustamante, the only witness who testified to the amount won or lost in either of the games was Sisenando Lanuza, who testified as follows:jgc:chanrobles.com.ph

"P. Ese dinero se perdio en los juegos de monte y burro con Mateo Alba,
Top of Page