G.R. No. 2153. November 23, 1905

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5 Phil. 349

[ G.R. No. 2153. November 23, 1905 ]




This was an action to recover the sum of $150, United States
currency, for certain printing or advertising alleged to have been done
by the plaintiffs for the defendant under contract. The defendant
claims that the contract of printing or advertising was done by the “Philippine Purchasing, Forwarding and Express Company,” and that these plaintiffs can not maintain this action.

The evidence adduced during the trial shows that these plaintiffs had in contemplation the organization of the “Philippine Purchasing, Forwarding and Express Company,”
and by virtue thereof entered into a contract with the defendant in the
name of such express company, to publish certain advertisements,
concerning the defendant’s business, in a mercantile directory to be
published by the said alleged company. The evidence also shows that the
defendant was informed, at the time he signed tnese contracts, that the
plaintiffs herein were the only persons interested in said express

The advertisement or advertising matter was published by the plaintiffs, as they allege, in conformity with this contract.

The plaintiffs also allege that they presented to the defendant, at the time the contract was entered into, a “dummy,”
representing the form of the mercantile directory to be published, and
that said mercantile directory was published exactly in accordance with
this form or “dummy.”

The plaintiffs brought this action in their individual names,
without any reference to the fact that the contracts were made with the
said express company. During the trial they offered in evidence these
contracts. The court refused to admit the contracts in evidence for the
reason that such contracts show upon their face that they were made or
entered into between the said express company and the defendant and not
between the plaintiffs and the defendant. The defendant admitted that
he entered into the contract with the said company; that he was
informed at the time that these plaintiffs were the only persons
interested in the company and that the advertising matter which he
furnished was published, but alleged and undertook to show by proof
that the directory published was not the kind of directory that the
plaintiffs undertook to publish.

While the contract was actually made between the “Philippine Purchasing, Forwarding and Express Company,
it was clearly shown by proof during the trial that these plaintiffs
were the real parties in interest. Section 114 of the Code of Civil
Procedure provides that every action must be prosecuted in the name of
the real party in interest. The fact that these plaintiffs were the
real parties in interest in the contracts should have been set out in
the complaint, however, the failure to allege their relation to the
contracts sued upon was cured by the evidence adduced during the trial.
The plaintiffs were permitted during the trial to prove that they were
the only parties in interest, as against the defendant, in said
contracts. By proving that they were the only parties in interest in
said contracts, they thereby made the contracts marked “Exhibits B, C,
and D” admissible as evidence, even though such contracts appeared upon
their face to have been executed by other obligees. The proof admitted
during the trial that they were the real parties in interest, even in
the absence of an allegation in the petition to that effect, made the
contracts admissible in evidence.

We are therefore of the opinion that these parties had a right to
maintain the action in their individual names and that the contracts
offered in evidence marked “Exhibits B, C, and D” should have been admitted.

The original “dummy” was not introduced in evidence; neither was the “directory
as published made a part of the bill of exceptions. There is nothing,
therefore, in the record to show whether the directory published by the
plaintiffs was in conformity with the contract between the defendant
and the alleged company or not. We have, however, the findings of the
judge who tried this cause in the inferior court, upon that question,
which is as follows:

“The proof shows that this is not a mercantile
directory, but merely an advertising pamphlet. It is not in any way
like it was represented to the defendant it would be for inducing him
to subscribe.”

In the absence of other proof to the contrary in the bill of
exceptions, we accept this finding of the inferior court. Our
conclusion is, therefore, that the plaintiffs did not comply with their
contract with the defendant and are, therefore, not entitled to recover.

The judgment of the inferior court is therefore affirmed, and after
the expiration of twenty days judgment will be entered in accordance
herewith and the case remanded to the court below. So ordered.

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

Date created: April 28, 2014


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