Miguel v. Hizon

JOHNSON, J.:

This action was commenced n the Court of First Instance of the City of Manila on the 6th day of July, 1925. Its purpose was to recover of the defenddants the sum of P14,052.16 for "Royal Soft Drinks" and beer furnished by plaintiff to the defendant Abelardo Hizon as its agent.

The other defendants were included, as sureties of said Abelardo Hizon. The defendants Abelardo Hizon, Cayetano Arnedo, Atanacio Mercado, Soledad Mercado and Felino Hizon filed a demurrer on the ground of ambiguity and insufficiency of facts to constitute a cause of action, which demurrer was overruled. All of the defendants answered, denying generally and specifically each and every allegation of the complaint.

Abelardo Hizon in his amended answer alleged, by way of special defense and counterclaims, (a) that should a lquidation of the transactions between him and the plaintiff be made, the result would be a credit in his favor and against the plaintiff in the sum of P559.38, plus the sum of 550 for containers returned by him to the plaintiff and (b) that he suffered damages in the sum of P25,000, arising from the termination of his agency by the plaintiff, without reasonable cause and in violation of the terms of their contracts; and prayed for a judgment against the plaintiff for said amounts. Upon the issue raised by the pleadings, the cause was brought on for trial before the Honorable C. A. Imperial, judge, on the 25th day of February, 1926. After hearing the principal witness for the plaintiff, by agreement of the parties, the court appointed Mr. Vicente Fabella, a public accountant residing in the City of Manila, as referee "con facultades para recibir las pruebas que las partes y sus abogados presenten."

The trial was continued before the referee, at the conclusion of which and pursuant to a stipulation, the parties presented their written "statements" in support of their respective claims. After a consideration of the evidence adduced during the trial and the said written "statements,"

on September 10, 1026, the referee submitted his report to the court, in which he arrived at the conclusion that the defendant Abelardo Hizon was indebted to the plaintiff in the sum of P12,586.62. As to the liability of the other defendants, the referee says in his report: (d) Los Exhibits H, I, J, y K establecen de que los otros demandados han prestado fianzas solidariamente con el obligado principal, Abelardo Hizon, y que dichas fianzas han sido prestadas en las formas y cantidades sigiuentes: por Cayetano Arnedo y Soledad Mercado solidariamente hasta la cantidad de tres mil pesos (Exhibit H); por Atanacio Mercado y Garciana Mercado hasta la cantidad de dos mil pesos garantizada con primera hipoteca de cierto terreno a favor de la San Miguel Brewery (ExhibitI); por Tiburcio Mercado y Felino solidariamente hasta la cantidad de seis mil pesos (Exhibit J); y por Porfirio Espinosa y Chua Uy Kioc solidariamente hasta la cantidad de tres mil pesos (Exhibit K); cuyas fianzas ascienden a un total catorce mil pesos.

By permission of the court, on October 27, 1926, the defendant Abelardo Hizon filed a long memorandum in which he contested various items allowed by the referee in favor of the plaintiff and against the defendant. On November 15, 1926, the Honorable C. A.

Imperial, judge, rendered a judgment, based on the report of the referee, in favor of the plaintiff and against the defendants for the sum of P12,586.62, ordering the defendant Abelardo Hizon, as principal, and the other defendants as sureties, to pay jointly and severally to the plaintiff the said sum of P12,586.62 with legal interest from the date of the filing of the complaint, and costs. By reason of several motions for reconsideration and new trial filed by the attorneys for the defendants, the court on December 28, 1926, set aside its decision of November 15, 1926, and issued the following order: Con el de que las partes y sus respectivos abogados tengan oportunidad de discutir ampliamente el informe por escrito presentado por el arbitro (referee) nombrado se deja sin efecto la decision dictada en el asunto con fecha 15 de noviembre de 1926, y se senala a vista el referido informe del arbitro para el 8 de enero 1927, a las 8.30 a.

m., en cuya fecha hora los abogados de todas las partes interesadas compareceran y expresaran sus puntos de vista acera de dicho informe. On January 11, 1927, after a consideration of said motions for reconsideration an new trial, the court, finding the said motions were without merits, revived its judgment of November 15, 1926, above stated. From said judgment the defendants appealed.

Appellant Abelarado Hizon now contends that the lower court committed an error (a) in overruling his demurrer and (b) in not allowing his counterclaim for alleged damages arising from the closing of his agency. He also makes other assignments of error in which he contends that such and such amounts or items should not have been charged against him. The other appellants contends, in substance, that the lower court committed an error - (a) In not absolving them from all liability under the complaint; (b) In not holding that they were jointly and severally liable with the appellant Abelardo Hizon only to the extent of their respective bonds; (c) In holding them liable for obligations contracted by Abelardo Hizon prior to the execution of their bonds; and (d) In not giving them an opportunity to present their proof in support of their objection to the report of the referee.

It appears from the record that the defendants Abelardo Hizon had been acting as agent for the plaintiff for the distribution and sale of "Royal Soft Drinks" and beer in the Province of Tarlac and in some of the towns of Nueva Ecija and Pangasinan, from 1922 to 1925 under the terms of "cartas-contratos" dated December 29, 1922, December 29, 1923 and December 29, 1924; July 9, 1923 and July 9, 1924; December 11, 1923 and December 11, 1924 (Exhibits A to G).

It was provided in said contracts that a "la San Miguel Brewery se reverse el derecho de cancelar este contrato en cualquier tiempo durante el mencionado periodo si hay suficiente motivo para ello, a fin de proteger los intereses de esta Fabrica." Under the terms of said contracts and pursuant to the practice of the plaintiff, the defendant Abelardo Hizon as agent, was to have an account with the plaintiff, on which will be debited the prices of all products ordered by him at the time of their shipment. Credits will be taken on said account for remittances made by the agent as well as for the return of containers (cases and bottles) and also for commissions, discounts and freight (Exhibits A to G).

To guarantee the performance of his obligations with the plaintiff, the defendant Abelardo Hizon jointly and severally with his codefendants executed and delivered in favor of the plaintiff four bonds as follows: Exhibit H , by Abelardo Hizon, as principal, and Cayetano Arnedo and Soledad Mercado as sureties, solidariamente , for the sum of P3,000. Exhibit I, by Abelardo Hizon, as principal, and Atanacio Mercado and Graciana Mercado, as sureties, solidariamente for the sum of P2,000; Exhibit J, by Abelardo Hizon, as principal, and Felino Hizon and Tiburcio Mercado.

as sureties, solidariamente , for the sum of P6,000; and Exhibit K , by Abelardo Hizon, as principal, and Porfirio Espinosa and Chua Uy Kioc, as sureties, solidariamente , for the sum of P3,000. In June 1925, by reason of the failure of Abelardo Hizon to comply with his obligations with the plaintiff in regard to payment of his accounts, the agency was closed by the plaintiff with the acquiscence of the defendant Abelardo Hizon (Exhibit B-1). At that time he was behind in his accounts with the plaintiff in the sum of P13,613.32 as follows: Statements 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 T ..........................................................

................ Exhibit U .......................................................... 1,885.39 Exhibit V ..........................................................

914.24 Exhibit W .......................................................... 893.60 Exhibit X .......................................................... 131.00 Balance against Abelardo Hizon .....................................