Statement of
Accounts
Exhibit L
Exhibit M
Exhibit O P2,919.63
Exhibit P 4,949.66
Exhibit Q 509.50
Exhibit R 575.40
Exhibit S 834.90
————
Exhibit U 1,885.39
Exhibit V 914.24
Exhibit W 893.60
Exhibit X 131.00
————
Balance against Abelardo Hizon 13,613.32
The defendant Abelardo Hizon presented documentary evidence only, through the attorney for the plaintiff, consisting of Exhibits 1, 2, 3, and 4. The intent and purpose of said exhibits not having been expleined during the trial, and the same not being self-explanatory, we are at a loss to appreciate their full evidentiary value. According to the record said exhibits "hacen referencia segun el (Abelardo Hizon) a los Exhibits L a X." The other defendant presented no evidence whatsoever.
In connection with said Exhibits 1 to 4 of the defendant, the plaintiff further presented Exhibits 1 to F-l and, with said exhibits, explained in detail the correctness of the items or amounts questioned by the defendant in his Exhibits 1 to 4.
The referee, after a careful consideration of the evidence adduced during the trial and of the written arguments or "statements" filed by the parties pursuant to a stipulation between them, found that certain objections or "reparos" made by the defendant Abelardo Hizon in his written argument, should be sustained and, accordingly, reduced the claim of the plaintiff from P13,613.32 to P12,586.62 as follows:
Exhibit O reduced from P2,919.63 to P2,857.11
Exhibit P reduced from 4,949.66 to 4,043.28
Exhibit S reduced from 834.90 to 827.10
Exhibit U reduced from 1,885.39 to 1,835.39
Exhibit Q as claimed by plaintiff 509.50
Exhibit R as claimed by plaintiff 575.40
Exhibit V as claimed by plaintiff 914.24
Exhibit W as claimed by plaintiff 893.60
Exhibit X as claimed by plaintiff 131.00
————
Total 12,586.62;
which is the amount allowed by the lower court in favor of the plaintiff and against the defendants jointly and severally.
It is now contended on behalf of the appellant Abelardo Hizon that the lower court committed an error in overruling his demurrer and in not allowing his counterclaim for alleged damages arising from the cancellation by the plaintiff of his contracts as agent.
The demurrer was without merits. It was based on the grounds of ambiguity, and insufficiency of facts to constitute a cause of action. Such alleged defects are not found in the complaint. The claim for damages is without any foundation whatever. In the first place no evidence of damages was produced during the trial; and, besides, his contracts as agent were cancelled by the plaintiff by reason of his failure to comply with his obligations. The contracts themselves specifically reserved to the plaintiff the right so to do, as stated above. Furthermore, he agreed to the cancellation of said contracts. (See Exhibit B-l.)
It is also contended on behalf of Abelardo Hizon that the item for ice and tumblers, amounting to P1,079, should not have been allowed in favor of the plaintiff, inasmuch as the contracts on which he was sued refer exclusively to "Royal Soft Drinks" and beer. The evidence shows, how. ever, that there was an oral understanding between him and the plaintiff, that if this article (ice) were not paid in cash, the same would be charged on his account or else deducted from his remittances. Therefore, the inclusion of that amount in the judgment is not an error. Counsel specify in his brief twenty-three other items, contending that the same should not have been allowed by the lower court. In answer to this contention it may be said that after a careful examination of the evidence we are satisfied that a preponderance of the same shows that the items were a proper charge on the accounts of the defendant.
The first contention of the other appellants, as above stated is, that the court erred in not absolving them from all liability under the complaint. It is argued that the obligation of the appellants, as sureties for Abelardo Hizon, was extinguished in view of the fact that the contracts of Abelardo Hizon with the plaintiff had been renewed without their consent or knowledge. This contention cannot be sustained. The bonds executed by the sureties contained the following proviso: "Entendiendose que esta obligacion de fianza subsistira durante cualquier prorroga o renovacion de todos o cualquiera de los contratos arriba mencionados." Therefore the renewal of the contracts did not extinguish the liability of the sureties on their bonds.
The second contention of the appellants is, that under the terms of their bonds they are liable severally with Abelardo Hizon, only to the extent of the amounts specified in the bonds and not for the total liability of Abelardo Hizon as held by the trial court. We have carefully examined the bonds and, under the terms thereof, we agree with the appellants that their liability to the plaintiff is limited only to the amounts specified in their respective bonds. The pertinent portions of said bonds, showing the extent of the liability of the sureties, are as follows:jgc:chanrobles.com.ph
"Exhibit H
"Por tanto, nosotros Abelardo Hizon como obligado principal, Cayetano Arnedo y Soledad Mercado, como fiadores nos obligamos solidariamente a favor de la San Miguel Brewery por los saldos deudores de las cuentas que dicho Abelardo Hizon contraiga o haya contraido con la San Miguel Brewery hasta la referida cantidad de tres mil pesos (P3,000) segun los terminos de las cartas-contratos resenadas, a cuyo pago nos obligamos por nosotros y por nuestros herederos y sucesores.
"Exhibit I
"Por cuanto, dicho D. Abelardo Hizon y la San Miguel Brewery han convenido en que dicho credito de diez mil pesos (P10,000) asi como todas las demas obligaciones contraidas por el Sr. Hizon en los mencionados contratos, esten garantizados con varias fianzas por un valor total de diez mil pesos (P10,000), y que de esta cantidad, dos mil pesos (P2,000) esten garantidos con hipoteca sobre ciertos inmuebles por uno o dos fiadores;
"ABELARDO HIZON
"Obligado Principal
"GRACIANA MERCADO
"Fiadora
"ATANACIO MERCADO
"Fiador"
If the parties intended the document to be a mortgage, only Graciana Mercado and Atanacio Mercado would have signed the same as "mortgagors," and Abelardo Hizon would not have signed the same, inasmuch as he did not have any right, interest or participation in the land described in the document. Therefore, the contention of counsel cannot be sustained.
Counsel also contends that the lower court erred in holding the defendants liable for obligations contracted by Abelardo Hizon prior to the execution of their bonds. This contention is without any foundation altogether. Under the terms of the bonds the sureties bound themselves to answer for "Los saldos de las cuentas que dicho Abelardo Hizon contraiga o haya contraido," under his contracts as agent for the plaintiff.
In the last assignment of error counsel contends that the lower court did not give the defendants an opportunity to present evidence in support of their objections to the report of the referee.
This contention is not supported by the record. As above stated, counsel for Abelardo Hizon, by permission of the court, filed a memorandum contesting various items which had been allowed by the referee in favor of the plaintiff. In said memorandum counsel specified all of the items objected to, with his reasons for so objecting. The trial judge rendered his decision after considering all of the evidence, the report of the referee and the defendants’ objections thereto. And not only that, but in order to give full and complete justice to the defendants, the court in its order of December 28, 1926, above quoted, set aside its decision and set the cause for further hearing on January 8, 1927, with special reference to the report of the referee. By reason of the failure of the attorneys for the defendants to appear, and after considering their motion for reconsideration and new trial, the court on January 11, 1927 revived its decision of November 15, 1926, and reproduced the same by incorporating at the beginning thereof the following paragraphs:jgc:chanrobles.com.ph
"La decision dictada en este asunto el dia 15 de noviembre de 1926 se dejo sin efecto, por orden dictada el 28 de diciembre de 1926, para dar oportunidad amplia a los abogados de todas las partes interesadas de discutir los meritos del informe por escrito presentado por el arbitro que ha sido nombrado por convenio de todas dichas partes.
"En la vista de dicho informe del arbitro comparecio el abogado Marcial Cordero, en representacion del codemandado Abelardo Hizon, y en el escrito que ha presentado aparecen los fundamentos que se alegan para que dicho informe sea desaprobado, se conceda reapertura de juicio y que se dicte despues sentencia a favor de dicho demandado. El abogado de los otros demandados en vez de puntualizar sus objeciones contra el informe, sometio una mocion por escrito solicitando transferencia de vista de dicho informe. Esta peticion se ha denegado, por no estar bien fundada. Ninguno comparecio por el abogado de la entidad demandante.
"Los meritos del asunto no han cambiado enteramente, y las conclusiones de hecho y de derecho expuestas en la decision dictada el 15 de noviembre de 1926 deben ser mantenidas. El informe del arbitro, con sus conclusiones, esta enteramente de acuerdo con los hechos y esta sostenido por las pruebas presentadas por todas las partes y esta fundado en la ley."cralaw virtua1aw library
From the foregoing it appears that the defendants were given every opportunity to present evidence in support of their objections to the report of the referee. The assignment of error, that the defendants did not have their day in court, is without any foundation.
In accordance with all of the foregoing, we are of the opinion that the judgment appealed from should be and is hereby modified. Therefore, Abelardo Hizon is hereby sentenced to pay to the plaintiff the sum of P12,586.62; and his codefendants, as sureties, are hereby sentenced to pay to the plaintiff, jointly and severally with Abelardo Hizon, the proportional parts of said sum as may be covered by the amounts of their respective bonds. In all other respects, the judgment appealed from is hereby affirmed, with costs. So ordered.
Street, Malcolm, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.