EN BANC
[G.R. No. 41503. August 17, 1934. ]
E. M. MASTERSON, Plaintiff-Appellee, v. SMITH NAVIGATION COMPANY, Defendant-Appellant.
Pedro Camus for Appellant.
Virata & Chaves for Appellee.
SYLLABUS
1. CIVIL PROCEDURE; ATTACHMENT; DAMAGES RESULTING FROM WRONGFUL ISSUANCE OF A WRIT OF ATTACHMENT. — The plaintiff brought action for a sum of money and secured an order of attachment on one of the defendant’s vessels on the ground that said defendant had sold or war about to sell its property with intent to defraud him and the other creditors. It appeared, however, that the defendant could not sell either one of the two vessels it was operating because they were mortgaged to the Philippine Trust Company, which acted as trustee by virtue of a public instrument signed with others, by the plaintiff himself. It likewise appeared that the defendant had sold a car to Fernandez Hermanos, but said sale could not have been fraudulent because it had been made by the board of directors of the defendant of which the plaintiff was a member. Held: That the order of attachment was issued without any justifiable motive and the plaintiff is liable for the damages caused to the defendant.
D E C I S I O N
IMPERIAL, J.:
The plaintiff brought this action to recover from the defendant, a domestic corporation, three distinct sums of money which were the subject matter of another three separate causes of action. At the trial, the plaintiff asked for the dismissal of his third cause of action, the debt involved therein having been paid, and the defendant, in turn, made a confession of judgment with respect to the first and second causes of action and consented to have judgment entered against it for the sums of money claimed thereunder. The trial proceeded for the purpose of passing upon the defendant’s counterclaim seeking judgment against the plaintiff for the sum of P15,549.82.
The court rendered judgment ordering the defendant to pay the sum of P1,000 with interest thereon at 12 per cent per annum from November 3, 1931, until fully paid, with costs, and dismissing the counterclaim. The defendant appealed from the last part of the judgment.
Upon instituting his action the plaintiff secured an order of attachment on the defendant’s vessel Ethel Conklin, alleging as his ground that said defendant had sold and was about to sell its property with intent to defraud him and the other creditors. It appeared, however, that the defendant could not dispose of either one of the two vessels it was operating because they were mortgaged to the Philippine Trust Company, which acted as trustee by virtue of a public instrument signed with others, by the plaintiff himself. It is true that the defendant had sold a car to Fernandez Hermanos, but the sale could not have been fraudulent on the ground that it had been made by the board of directors of the defendant of which the plaintiff was a member. The plaintiff approved the sale and the same was consummated with his consent.
It is clear, therefore, that the order of attachment was issued without any justifiable motive and that the plaintiff is liable for the damages cause by him. The question that now arises relates to the extent of said damages. The defendant claims the sum of P16,334.05 in the following concept:chanrob1es virtual 1aw library
For loss of revenue on outward freightage P 1,075.00
For loss on account of the delay of 6 days attachment with
guard on board the S. S. Ethel Conklin at P200 a day 1,200.00
Losses for two (2) days delay in unloading with standby
stevedores 84.23
Losses to shippers caused by delay and charged to Smith
Navigation Company 374.82
Eighteen days delay for ordering shaft for Ethel Edwards
because of lack of financial assistance due to illegal at-
tachment at P200 a day 3,600.00
Damages to good name 10,000.00
————
Total 16,334.05
========
The second and fourth items represent damages properly imputable to the plaintiff. The vessel was attached and tied up for six days and loading and unloading was delayed by reason thereof. The vouchers presented by the defendant justify everything that it was compelled to pay to the owners of the cargoes and lighters which remained by the vessel’s side. This court, believes that the other items have not been satisfactorily proven and that the last two, particularly, are based on alleged damages which are very remote and problematical. We are of the opinion that the defendant is entitled to recover from the plaintiff only the sum of P1,574.82.
The appealed judgment is hereby modified and it is ordered that the plaintiff pay to the defendant, on its counterclaim, the sum of P1,574.82, without costs of this instance. So ordered.
Malcolm, Villa-Real, Butte and Goddard, JJ., concur.
The court rendered judgment ordering the defendant to pay the sum of P1,000 with interest thereon at 12 per cent per annum from November 3, 1931, until fully paid, with costs, and dismissing the counterclaim. The defendant appealed from the last part of the judgment.
Upon instituting his action the plaintiff secured an order of attachment on the defendant’s vessel Ethel Conklin, alleging as his ground that said defendant had sold and was about to sell its property with intent to defraud him and the other creditors. It appeared, however, that the defendant could not dispose of either one of the two vessels it was operating because they were mortgaged to the Philippine Trust Company, which acted as trustee by virtue of a public instrument signed with others, by the plaintiff himself. It is true that the defendant had sold a car to Fernandez Hermanos, but the sale could not have been fraudulent on the ground that it had been made by the board of directors of the defendant of which the plaintiff was a member. The plaintiff approved the sale and the same was consummated with his consent.
It is clear, therefore, that the order of attachment was issued without any justifiable motive and that the plaintiff is liable for the damages cause by him. The question that now arises relates to the extent of said damages. The defendant claims the sum of P16,334.05 in the following concept:chanrob1es virtual 1aw library
For loss of revenue on outward freightage P 1,075.00
For loss on account of the delay of 6 days attachment with
guard on board the S. S. Ethel Conklin at P200 a day 1,200.00
Losses for two (2) days delay in unloading with standby
stevedores 84.23
Losses to shippers caused by delay and charged to Smith
Navigation Company 374.82
Eighteen days delay for ordering shaft for Ethel Edwards
because of lack of financial assistance due to illegal at-
tachment at P200 a day 3,600.00
Damages to good name 10,000.00
————
Total 16,334.05
========
The second and fourth items represent damages properly imputable to the plaintiff. The vessel was attached and tied up for six days and loading and unloading was delayed by reason thereof. The vouchers presented by the defendant justify everything that it was compelled to pay to the owners of the cargoes and lighters which remained by the vessel’s side. This court, believes that the other items have not been satisfactorily proven and that the last two, particularly, are based on alleged damages which are very remote and problematical. We are of the opinion that the defendant is entitled to recover from the plaintiff only the sum of P1,574.82.
The appealed judgment is hereby modified and it is ordered that the plaintiff pay to the defendant, on its counterclaim, the sum of P1,574.82, without costs of this instance. So ordered.
Malcolm, Villa-Real, Butte and Goddard, JJ., concur.
