G.R. No. 1341. November 08, 1905

This purports to be an action for unlawful detention of personal
property, but what is really sought in the complaint is the recovery of
such property, or the value thereof, fixed by plaintiff in the sum of
11,942 pesos, in case restitution could not be made. The property
claimed is set out in detail in a statement attached to the complaint.

The judgment appealed from directs that defendant return to
plaintiff all the live stock specified in the said statement, to wit,
104 cows, 31 carabaos, 32 sheep, 17 goats, and 1 gray horse, or pay the
amount of 6,408 pesos, the total value of the said property.

The court found that the property claimed in the complaint had been
seized from the defendant by order of the Philippine revolutionary
authorities; that the defendant had been appointed receiver of the
same; that the furniture which comprised part of this property had been
sold at public auction by order of the same authorities, and that part
of the cattle and carabaos was sent by order of those in command to the
authorities at Malolos, Tarlac, and Vigan, and part was consumed by the
revolutionary troops, the exact number of either being unknown.

The court laid down as a conclusion of law that “all the property
seized from Ursula Liquete and sold at public auction, as well as the
cattle consumed by the revolutionary forces, should be considered as
having been lost by reason of force majeure; and the fact
that the loss occurred without fault on defendant’s part, who was in
charge of the property as receiver, should relieve him from the
obligation of returning the same.”

Having taken this view of the case, the trial court found that the
defendant was not liable for the return of the furniture (it is not,
therefore, necessary to refer to it in this decision) because it had
been sold at public auction.

The court below, however, entered judgment against the defendant for
the return of the other property claimed, for the sole reason, as
stated, that no evidence was adduced as to the exact number of the
cattle consumed by the revolutionary forces. Proceeding upon this
assumption, and considering that there was no evidence as to the
increase in said cattle since 1898, when they were delivered to the
defendant, the court below found that a just and equitable decision of
the case would be to allow compensation for the possible increase of
the cattle, with the decrease of the same by reason of the consumption
of part thereof during the revolution. For this reason the defendant
was ordered to return to plaintiff the total number of cattle
enumerated in the said statement.

The above decision is expressly accepted by the plaintiff, who
regards it as just and legal, as stated on page 6 of her brief.
Considering the case from this viewpoint, it resolves itself into a
question of figures, and all that is necessary to do is to determine
the number of cattle delivered to defendant after their seizure from
plaintiff, and the number of cattle consumed by the revolutionary
forces.

As to the first point, the trial court found that the defendant
received the total number of cattle appearing in the statement
submitted by plaintiff. “This,” says the trial court, “is a fact
admitted by the defendant in his demurrer to the complaint. It would
not do to say that he specifically denied this allegation in his
answer, nor that he has attempted to demonstrate the contrary by the
testimony of witnesses. The allegations contained in the demurrer are
conclusive and fatal to the party presenting the same.”

This finding of the court is based upon the fact that the defendant
seemed to have admitted in his demurrer the allegation in the complaint
to the effect that the defendant, as a revenue agent of the town of
Candon during the revolutionary government, had unjustly withheld the
property sought to be recovered in this action, and applied part
thereof to his own use, to the prejudice of the plaintiff.

We do not think that such a conclusion can be sustained.

The demurrer to a complaint can have no object other than to raise
questions of law upon the facts alleged in the complaint. The party
presenting a demurrer must proceed upon the assumption that the facts
alleged in the complaint are true, and on this assumption, and no
other, can he raise the legal questions upon which the demurrer is
based. He can not demur by denying the facts alleged in the complaint,
or by setting up new facts. That clearly appears from the definition
given in section 91 of the Code of Civil Procedure, which is in part as
follows:

“The demurrer is an allegation that, admitting the
facts of the preceding pleading to be true, as stated by the party
making it, he has yet shown no cause why the party demurring should be
compelled by the court to proceed further.”

Therefore, the demurrer can not be regarded as an admission of the
allegations contained in the complaint. To admit or deny such
allegations should be the subject of the answer. The party demurring to
the complaint must admit the allegations thereof, or assume them to be
true. This is a necessary assumption, merely hypothetical, and
therefore it can not be considered as proof of an admission on the part
of the defendant.

In the case at bar the defendant, in his demurrer, repeats almost
literally the allegations contained in the complaint, and attempts to
show that the complaint is defective on its face. Aside from any
grammatical imperfections, it is evident from the demurrer, considered
as a whole, that the object of the defendant in quoting the allegations
of the complaint was that above suggested. It was not his purpose to
admit such allegations, but to object to the action brought against
him, assuming, for the sake of argument, that such allegations were
true. Neither the general terms of the demurrer, considered in its
entirety, nor its legal nature as a pleading would allow of any other
construction. The defendant, in his answer, specifically denies the
said allegation contained in the complaint, as stated in the judgment
of the court below, and we find that said court erred in holding that
the defendant admitted such allegation, notwithstanding his express
denial thereof in the answer.

It is claimed by plaintiff in her brief that the pleading presented
by the defendant has been improperly termed a demurrer, and that, as a
matter of fact, it should be considered as an answer, alleging in
support of this contention that there is no other pleading in the bill
of exceptions that could be properly considered as an answer.

This last statement of the plaintiff is true, but it is nevertheless
also true that in addition to the demurrer the defendant filed an
answer specifically denying the receipt by him for safe-keeping of the
property claimed in the complaint. This clearly appears from the
judgment of the trial court, wherein it makes reference to the answer
on two occasions. The court below, after referring to the demurrer,
said:”It would not do to say that the defendant specifically denied this allegation in his answer” In another part of the judgment the following appears: “Furthermore, the specific denial contained in the answer
has been entirely contradicted.” Reference is again made to the answer
in the order of the court allowing the bill of exceptions (p. 50, bill
of exceptions) as follows: “It is further ordered that the clerk shall
include in the bill of exceptions the particulars designated by counsel
for plaintiff, to wit, the complaint, demurrer, and answer.”

Notwithstanding this, and without reference to the demurrer, we are
of the opinion that it has been sufficiently established that the
defendant received for safe-keeping not all but a part of the cattle
claimed in the complaint. According to the evidence introduced by
plaintiff, the defendant received from various persons the following:
70 head of cattle, 23 carabaos, 23 goats (of which 17 only appear in
the statement attached to the complaint), and 8 sheep. There is no
evidence that any other cattle were delivered to him, or that he ever
received the horse referred to in the statement submitted by the
plaintiff.

It has been also proven that the revolutionary authorities disposed
of all the cattle delivered to defendant, for the use of the army, and
that none of them were retained by him. The testimony of the witness
Pedro Legaspi and that of Dionisio Abaya, who had been municipal
presidents of the town of Candon, is conclusive upon this point. The
first-named witness testified that the cattle (the property of the
plaintiff) delivered to the defendant were, sent to the municipal presidencia
of Candon, and that, pursuant to orders from his superiors, 20 of them
were on one occasion forwarded by him to the government at Malolos, and
15 more at a subsequent time; that 16 cows were sent to the authorities
at Vigan, and 27 carabaos to the authorities at Tarlac, besides the
cows and sheep slaughtered at Candon for consumption by the troops
stationed at that point, the exact number of which he did not remember.
The second witness testified that while he was municipal president he
slaughtered cows, sheep, and goats belonging to plaintiff for the use
of the troops, pursuant to military orders; that he did not remember
the exact number slaughtered, but that it consisted of about 20 cows
(pp. 21, 25, and 26 of the bill of exceptions). These figures will show
that the total number of cattle and carabaos consumed by the
revolutionary forces at that time was a little more than, or at least
equal to, the number which appears to have been delivered to the
defendant. This slight discrepancy might well be explained by the fact
that the witnesses did not remember exactly some of the items referred
to by them in their testimony. As to the sheep and goats, the witnesses
failed to name even approximately the number actually consumed; but
taking into consideration the fact that they were used for several days
for the maintenance of a large number of soldiers (two companies,
according to the witness Legaspi) and that the number of such cattle as
given in plaintiff’s statement was not large, we have arrived at the
conclusion that all the sheep and goats appearing in the list submitted
by plaintiff were actually slaughtered and consumed by the
revolutionary forces.

The judgment appealed from is therefore reversed and judgment
entered in favor of defendant, each party to pay its own costs. After
the expiration of twenty days from the date hereof let judgment be
entered accordingly, and the case remanded to the trial court for
action in accordance herewith. So ordered.

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

Willard, JJ., did not sit in this case.