G.R. No. 20586. October 13, 1923

This action was instituted in the Court of First Instance of Pampanga by
Santiago Navarro, Sabas Magtoto, and Victorino Calara, as trustees
(mandatarios) of the inhabitants of the barrio of San Vicente, in the
municipality of Macabebe, to compel the defendants, Felix Mallari, as principal,
and Leon Tolentino and Ignacio Tolentino, as sureties, to comply with the
contract for the construction of a chapel to the patron saint of the barrio, or
in the alternative to require the same defendants to return the sum of P12,000
paid to them upon said contract, together with the sum of P4,000 as stipulated
damages for failure to construct the chapel according to specifications. The
defendant Pedro Mercado appears to have been one of the four trustees or agents
selected for the purpose of procuring the chapel to be built but as he refused
to join with his associates in instituting the present action, he was impleaded
as a defendant.

In their answer the defendants admitted the execution of the contract
(Exhibit A), relied upon by the plaintiffs, but set forth that Felix Mallari was
a mere figurehead in the contract and that the person to whom the building of
the chapel was really confided was one Jose Mallari, a son of Felix Mallari. The
defendants claim in short that the chapel was constructed in conformity with the
contract and plan, was turned over to the committee and accepted by it. The
defendants accordingly, by way of counterclaim, ask that the plaintiffs be
required to pay the balance due upon the agreed price for the construction of
the chapel, together with certain damages resulting from non-performance of the
contract.

At the trial of the cause his Honor, Judge Guillermo B. Guevara, after
hearing the evidence, came to the conclusion that the chapel had been built
according to contract and that the defendants were entitled to recover the sum
of P4,000 upon their counterclaim, the same being the balance due upon the
contract price. Judgment was accordingly entered absolving the defendants from
the complaint and requiring the plaintiffs to pay the sum of P4,000 to Felix
Mallari and to pay the costs of proceeding. From this judgment the plaintiffs
appealed.

It appears in evidence that in the year 1920, certain inhabitants of the
barrio of San Vicente, in the municipality of Macabebe, Pampanga, raised the sum
of P16,000 for the purpose of erecting a suitable chapel in honor of San Vicente
Ferrer, the patron saint of the barrio. This fund was placed in the hands of the
four trustees or agents already named, in order that they might let the contract
for the building of the chapel. While this matter was under consideration, a
clerk employed in the drafting division of the Bureau of Public Works, named
Jose Mallari, came to San Vicente on a visit, and he gave the four trustees
above-mentioned to understand that he was a competent person to do the work
which they had in mind and that he was not averse to assuming the task.

One obstacle to the letting of the contract to Jose was that he was in the
Government service, and it was contrary to Government regulations to allow
employees to do outside work. This obstacle was overcome by the expedient of
having the contract made in the name of his father, Felix Mallari; and with the
consent of Felix, this recourse was adopted. Accordingly on June 11, 1920, the
contract (Exhibit A) was entered into between Felix Mallari, as contractor, on
the one part, and the four trustees on the other, whereby Felix Mallari, in
consideration of the sum of P16,000, paid and to be paid, obligated himself to
construct within the period of one year a chapel to the patron saint of the
barrio, San Vicente Ferrer, according to the plan accompanying the contract and
made a part thereof. It was provided that first-class iron should be used for
the roof, that the best of cement should also be used, and that the woods should
be of bulaon (molave), dungon, guijo, and nothing else. Of the price of P16,000
stipulated to be paid for the building of the chapel, the sum of P12,000 was
paid at the time the contract was executed, leaving the sum of P4,000 to be paid
when the work should be finished and accepted to the satisfaction of the
trustees, acting in representation of the inhabitants of the barrio. For the
better assurance of the faithful and exact performance of the contract, it was
agreed that if either party should fail to comply with any of its conditions or
stipulations, such party should pay to the other by way of indemnity the sum of
P4,000.

Concurrently with the execution of said contract Leon Tolentino and Ignacio
Tolentino, also residents of the municipality of Macabebe, obligated themselves
in a collateral contract of guaranty (Exhibit C) to respond solidarily for the
faithful and true performance of the contract Exhibit A on the part of Felix
Mallari. Felix Mallari, it may be stated, is not a contractor or builder by
profession and knows nothing about constructing houses. His son Jose, although
he supposed himself to have some knowledge of the art, was but little better
versed in such matters than his father; and he appears to have had but little
skill even in the art of drafting.

As might have been expected from the lack of technical knowledge on the part
of the “contractor,” a botch was made of the job. The chapel was indeed
constructed somewhat in the external shape indicated in the design, but the work
was done with complete want of knowledge of the art of construction and of the
material employed. These words we take from the report of a competent engineer,
Señor Emilio Maria de Moreta, of Manila, who made a special examination and
careful report upon the condition of the structure. In concluding his report
(Exhibit E) Señor Moreta says that the plans were drawn by a person completely
ignorant not only of all knowledge of the resisting power of materials and of
descriptive geometry, as well as of technical knowledge in general, but that he
did not even possess sufficient instruction in the drawing of plans. Señor
Moreta concludes his report with the observation that the building threatens
ruin for want of proper foundation and that upon the slightest tremor of the
earth it might come down. The photographs in evidence as Exhibit I prepare one
for the conclusion stated in Señor Moreta’s report.

We do not encumber the opinion with the details stated at pages 2-6 of said
report but will merely say that by that report and the testimony adduced at the
trial, the case stated in the complaint is in our opinion completely
demonstrated; and the plaintiffs are without doubt entitled to recover the
stipulated damages for failure of the contracting parties to construct a chapel
in conformity with the fundamental principles of the art of building and in
accordance with the specifications of the contract.

But the chapel, such as it is, appears to be in use for the purpose for which
it was intended, and we are of the opinion that the plaintiffs are not entitled
to confiscate the sum of P4,000 which is as yet unpaid upon the purchase price
and at the same time to claim the stipulated damages. The result is that the
damages to which the plaintiffs are entitled under the last clause of the
contract (Exhibit A) must be set off against the portion of the contract price
which has been retained in the hands of the plaintiffs, with the result that
neither party can recover anything of the other.

Judgment will therefore be reversed and both parties absolved from the
complaint of the other, without special pronouncement as to costs of either
instance. So ordered.

Johnson, Malcolm, Avanceña, Villamor, Johns, and
Romualdez, JJ., concur.