G.R. No. 2297. November 07, 1905

The contract between the deceased, Teodoro Patricio and the
defendant, which gave the latter the right to occupy the house in
question, was made on the 19th day of April, 1902, after the present
Code of Civil Procedure went into effect. The lease was for the term of
five years from, the date of the said contract and the rent was 12
pesos a month, payable in advance in money that was legal tender.

The plaintiff brought this action in the court of a justice of the
peace on the 9th of February, 1904, asking that he be given possession
of the premises, and that the defendant be required to pay the rent
due, and damages. He based his right to recover upon the fact that the
defendant had not paid the rent for January and February, 1904; neither
had he paid 10 pesos corresponding to the months of October, November,
and December, 1903, which money he was required to pay by the terms of
his contract, on account of city water and other expenses of that
character. There is no evidence to show that the 10 pesos due for those
months had not been paid. The witnesses in the case all spoke of the
rent for January. Under the terms of the contract the defendant was
required to pay on the 19th day of December, 1903, the rent for the
month commencing on that day and ending on the 19th day of January,
1904, and on this last date, he was required to pay the rent for the
month commencing on that day and ending on the 19th day of February,
1904. There is nothing in the case to show that the defendant did not
pay on the 19th day of December the rent then due. There is proof that
the rent payable on the 19th day of January was not actually received
on that day by the plaintiff. There is a conflict in the evidence as to
the reason why this rent was not then received by the plaintiff. The
plaintiff’s only witness testified that the defendant refused to pay
because he did not have the money. Three witnesses for the defendant
testified that the money was offered to the collector of the plaintiff
in Mexican currency, and he declined to receive it on the ground that
it should be paid in Philippine currency. The court below decided this
question of fact in favor of the defendant, and we think the
preponderance of the evidence is in favor of that finding. The proviso
to section 3 of the act of Congress of March 2,1903, gave the defendant
the right to pay this debt in Mexican currency, and it was the duty of
the plaintiff to receive that currency.

The only jurisdiction which the justice of the peace had in this
case was given to him by section 80 of the Code of Civil Procedure now
in force. By the terms of that section the plaintiff can not recover in
a case of this kind unless he has made a demand for the payment of the
rent after it becomes due, that demand has been refused, and thirty
days have elapsed since such demand and refusal. The present case does
not come within the terms of the section for two reasons: In the first
place, the demand for the rent due on the 19th day of January was not
refused, but an offer of payment was duly made. In the second place,
thirty days had not elapsed between the time when the demand was made
and the time when the action was commenced. The judgment of the court
below refusing to grant the plaintiff the possession of the premises
was therefore correct.

In view of the fact that the plaintiff was in no event entitled to
maintain the action, we do not think there was any error in the order
of the court below prejudicial to the plaintiff, directing the clerk of
the court to pay over to him 123 pesos—the amount of rent deposited by
the defendant in court. The amount due at the date of the judgment from
the defendant to the plaintiff under the evidence in the case was no
greater.

Therefore the judgment of the court below is affirmed, with the
costs of this instance against the appellant, and after the expiration
of twenty days judgment should be entered in accordance herewith and
the case remanded to the court below for execution of said judgment. So
ordered.

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.