1. OBLIGATION AND CONTRACT; ACCEPTANCE OF PARTIAL PAYMENT, WAIVER OF THE TERM. — The acceptance of a partial payment by a creditor is not a novation of the contract, but a waiver of the period agreed upon during which payment should not be made. It is a relinquishment of his right to refuse any payment before the expiration of the term. If no explanation is given why the creditor received said partial payment before the maturity of the obligation, it may be presumed that his relinquishment was intentional and his choice to dispense with the term, voluntary. It is not a mere forbearance. (56 Am. Jur. pp. 102, 104, 107 and 113)

2. ID.; WORDS AND PHRASES; "ESTOPPEL" AND "WAIVER" ARE CONVERTIBLE. — The words "estoppel" and "waiver" are frequently used as convertible. The doctrine of waiver belongs to the family of, or is based upon, estoppel. This is especially true where the waiver relied upon is constructive or implied from the conduct of a party, when it is said that the elements of estoppel are attendant.

3. PLEADING AND PRACTICE; "BALLANTYNE SCALE OF VALUES" NEED NOT BE PLEADED OF PROVED. — The Ballantyne scale of values is now a matter that comes within judicial notice it having been applied by the Supreme Court in several previous cases and had become part of our jurisprudence.

This is a petition for review of a decision of the Court of Appeals modifying that of the court a quo in the sense that "all the amounts awarded . . . shall be reduced to its equivalent in actual Philippine currency in the proportion of 15 to 1", without costs.

On August 26, 1943, Enrique P. Ochoa executed in favor of Joaquin Lopez a document whereby he mortgaged a piece of land located in Manila as security for the payment of a loan in the amount of P15,000 in Japanese military notes to be paid, among other conditions, as follows:jgc:chanrobles.com.ph

"1 — Devolera dicha cantidad en el plazo de DOS AÑOS, a contar desde la fecha de esta escritura, cuyo plazo se estipula estrictamente en beneficio reciproco del deudor y del acreedor. De tal manera que el deudor no podra pagar al acreedor el capital ni parte del mismo, antes de la expiracion del plazo, aunque ofrezca pagar los intereses correspondientes al periodo no transcurrido de dicho plazo; y de igual manera, el acreedor tampoco podra exigir el pago del capital de este préstamo antes del plazo convenido. Esta clausula se considera como una condición especial y esencial de este contrato, que forma parte de su consideracion especial y de este contrato, que forma parte de su consideracion legal, pues sin ella las partes contratantes no hubieran aceptado este contrato.

"2. — Pagara sobre la mencionada cantidad intereses a razon de cinco por ciento annual, pagaderos por semestres vencidos en la residencia del acreedor y sin necesidad de requerimiento."cralaw virtua1aw library

On March 1, 1944, Ochoa paid Lopez the sum of P375 as interest on the principal of the aforesaid loan for the period from August 26, 1943 to February 25, 1944 and on June 12, 1944, he paid P5,000, in Japanese war notes, on account of the principal for which Lopez issued a receipt.

On August 25, 1944, Ochoa made another payment in the sum of P323.62 on account of interest for the period from February 26, 1944 to August 26, 1944. On October 2, 1944, he tendered to López the payment of the balance of the indebtedness with the corresponding interest, but the latter refused to accept it on the ground that it was against the terms of the mortgage. In view of such refusal, Ochoa advised López that he would deposit the money in court and, accordingly, he filed a complaint with the Court of First Instance of Manila accompanied by a deposit in the amount of P10,631.50. Lop