FIRST DIVISION
[G.R. No. 30888. September 28, 1929. ]
VIUDA E HIJOS DE CRISPULO ZAMORA, Petitioner, v. BEN F. WRIGHT and F. SEGADO, as Insular Auditor and Purchasing Agent, respectively, of the Government of the Philippine Islands, Respondents.
Jose Yulo for Petitioner.
Attorney-General Jaranilla for Respondents.
SYLLABUS
1. GENERAL RULE. — It is the well established general rule that only specific legal rights are enforceable by a mandamus, and that such rights must be clear and certain.
2. NOW SETTLED LAW. — It is now the settled law of this court that mandamus will lie to compel the Insular Auditor to perform a ministerial act, and that it is for the courts and not for the Auditor to say what is and what is not a ministerial act.
3. QUESTION INVOLVED. — In this case, the real question involved is the legal construction of the contract between the petitioner and the Government made by and through its Purchasing Agent, to which the powers and duties of the Insular Auditor are merely incidental.
4. WHEN MANDAMUS WILL NOT LIE. — Where it appears that the Government formerly purchased cross-arms at P3.11 each, and Z wrote a letter to the Bureau of Posts, in which he proposed to furnish similar cross- arms at a cost "not much more than the ordinary cross-arms now on the market," and based upon which the Director of Posts requested the Bureau of Supply to purchase 8,200 cross-arms, in which he stated that those offered by Z "are acceptable to this office if no cheaper ones can be obtained elsewhere," and "that the two-line cross-arms, are of the same strength and durability as the kind we are using, and that the four-line cross-arms are twice as strong as the two-line cross- arms," and that "the distance between the holes of the two-line cross- arms must be exactly the same as that between the holes of the kind we are using, and the distance between those of the four-line cross-arms must be at least 12 inches," and where it appears that the Purchasing Agent of the Bureau of Supply, in violation of those specific instructions, entered into a contract with Z to purchase from him similar cross-arms to those for which the Government formerly paid P3.11 each, and to pay P7.18 for a two-line cross-arm, and P7.78 for a four-line cross-arm, with a space of less than nine inches between the wires, based on such a contract, mandamus will not lie to compel the Insular Auditor to sign a warrant in favor of Z for the purchase price of his cross-arms.
5. DUTY OF PUBLIC OFFICER. — Every public officer is bound to perform the duties of his office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the public.
6. WHEN BUREAU OF SUPPLY ACTS AS AGENT. — Under the provisions of section 2051 of the Administrative Code, as amended by Act No. 2864, in the making of purchases on specific requisitions, the Bureau of Supply acts as an agent of the department which makes the requisition, and as such is paid for its services.
7. DUTY OF PURCHASING AGENT. — In the purchase of the cross-arms, it was the duty of the Purchasing Agent to substantially follow the specific instructions of the Director of Posts as to both the kind, dimensions, cost and quality of the cross-arms.
8. COMMON KNOWLEDGE. — It is a matter of common knowledge that the use of electricity is very dangerous, and that when the wires are too close to each other, electricity will jump from the high tension to the low tension wire, or from a live wire to a dead wire.
9. DUTY OF COURTS TO CONSTRUE CONTRACT. — The legal construction of a contract when once made with the Government is for the courts and not the Purchasing Agent who made the contract, and in doing so, the courts are not bound by the legal construction placed on the contract by the Purchasing Agent.
10. WHEN SPECIFIC PERFORMANCE WILL NOT BE ENFORCED. — In this case Z, knowing the price which the Government formerly paid for similar cross-arms, and having stated and represented that he would furnish it with cross-arms at a cost of not "much more than the ordinary cross- arms now on the market," is not in a position to enforce the specific performance of an alleged contract to compel the Government to pay more than twice the amount which it formerly paid for similar cross-arms.
STATEMENT
The petitioner is a commercial partnership with its principal office and place of business in the City of Manila. The respondent, Ben F. Wright, is the Insular Auditor of the Philippine Islands, and F. Segado, is Purchasing Agent.
March 17, 1926, the petitioner sent to the Bureau of Posts a letter, the material portions of which are as follows:jgc:chanrobles.com.ph
"Mr. JOSE TOPACIO
"Director of Posts
"Manila, P. I.
"DEAR SIR: Re our double utility telegraph pole cross-arm, patent of which has been applied for, we wish to quote as follows:chanrob1es virtual 1aw library
Standard size —
Complete with bolts and nuts each 2.98
Extra clip with bolts and nuts do .52
Large size —
Complete with bolts and nuts each P3.59
Extra clip with bolts and nuts do .62
(Difference in price between standard size and larger size is due to additional cost of material. The larger size being 24 inches long by 2
2. NOW SETTLED LAW. — It is now the settled law of this court that mandamus will lie to compel the Insular Auditor to perform a ministerial act, and that it is for the courts and not for the Auditor to say what is and what is not a ministerial act.
3. QUESTION INVOLVED. — In this case, the real question involved is the legal construction of the contract between the petitioner and the Government made by and through its Purchasing Agent, to which the powers and duties of the Insular Auditor are merely incidental.
4. WHEN MANDAMUS WILL NOT LIE. — Where it appears that the Government formerly purchased cross-arms at P3.11 each, and Z wrote a letter to the Bureau of Posts, in which he proposed to furnish similar cross- arms at a cost "not much more than the ordinary cross-arms now on the market," and based upon which the Director of Posts requested the Bureau of Supply to purchase 8,200 cross-arms, in which he stated that those offered by Z "are acceptable to this office if no cheaper ones can be obtained elsewhere," and "that the two-line cross-arms, are of the same strength and durability as the kind we are using, and that the four-line cross-arms are twice as strong as the two-line cross- arms," and that "the distance between the holes of the two-line cross- arms must be exactly the same as that between the holes of the kind we are using, and the distance between those of the four-line cross-arms must be at least 12 inches," and where it appears that the Purchasing Agent of the Bureau of Supply, in violation of those specific instructions, entered into a contract with Z to purchase from him similar cross-arms to those for which the Government formerly paid P3.11 each, and to pay P7.18 for a two-line cross-arm, and P7.78 for a four-line cross-arm, with a space of less than nine inches between the wires, based on such a contract, mandamus will not lie to compel the Insular Auditor to sign a warrant in favor of Z for the purchase price of his cross-arms.
5. DUTY OF PUBLIC OFFICER. — Every public officer is bound to perform the duties of his office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the public.
6. WHEN BUREAU OF SUPPLY ACTS AS AGENT. — Under the provisions of section 2051 of the Administrative Code, as amended by Act No. 2864, in the making of purchases on specific requisitions, the Bureau of Supply acts as an agent of the department which makes the requisition, and as such is paid for its services.
7. DUTY OF PURCHASING AGENT. — In the purchase of the cross-arms, it was the duty of the Purchasing Agent to substantially follow the specific instructions of the Director of Posts as to both the kind, dimensions, cost and quality of the cross-arms.
8. COMMON KNOWLEDGE. — It is a matter of common knowledge that the use of electricity is very dangerous, and that when the wires are too close to each other, electricity will jump from the high tension to the low tension wire, or from a live wire to a dead wire.
9. DUTY OF COURTS TO CONSTRUE CONTRACT. — The legal construction of a contract when once made with the Government is for the courts and not the Purchasing Agent who made the contract, and in doing so, the courts are not bound by the legal construction placed on the contract by the Purchasing Agent.
10. WHEN SPECIFIC PERFORMANCE WILL NOT BE ENFORCED. — In this case Z, knowing the price which the Government formerly paid for similar cross-arms, and having stated and represented that he would furnish it with cross-arms at a cost of not "much more than the ordinary cross- arms now on the market," is not in a position to enforce the specific performance of an alleged contract to compel the Government to pay more than twice the amount which it formerly paid for similar cross-arms.
STATEMENT
The petitioner is a commercial partnership with its principal office and place of business in the City of Manila. The respondent, Ben F. Wright, is the Insular Auditor of the Philippine Islands, and F. Segado, is Purchasing Agent.
March 17, 1926, the petitioner sent to the Bureau of Posts a letter, the material portions of which are as follows:jgc:chanrobles.com.ph
"Mr. JOSE TOPACIO
"Director of Posts
"Manila, P. I.
"DEAR SIR: Re our double utility telegraph pole cross-arm, patent of which has been applied for, we wish to quote as follows:chanrob1es virtual 1aw library
Standard size —
Complete with bolts and nuts each 2.98
Extra clip with bolts and nuts do .52
Large size —
Complete with bolts and nuts each P3.59
Extra clip with bolts and nuts do .62
(Difference in price between standard size and larger size is due to additional cost of material. The larger size being 24 inches long by 2
