VENANCIO CASTAÑEDA, ET AL., PLAINTIFFS AND APPELLEES, VS. PASTOR DE AGO, ET AL., DEFENDANTS AND APPELLANTS.

Appeal from the decision of the Court of First Instance of Manila dated May
30, 1957, and its order of March 7, 1958, (R. A. pp. 46-58 & 156-157). The
former sentenced appellant Pastor De Ago as follows:

“* * * to return to the plaintiffs the three pieces of machinery described in
the complaint or to pay them jointly and severally the sum of P30,000. Said
defendants are also hereby sentenced to pay the plaintiffs jointly and severally
the sum of P1,750 for the month of August 3, to September 3, 1954 and from
September 4, 1954 and until the three pieces of machinery are returned to the
plaintiffs or paid them the sum of P30,000, the sum of P1,312.50 monthly,
deducting therefrom the sum of P3,000 admitted by the plaintiffs to have been
paid to them by the defendant, plus the sum of P2,000 as attorney’s fees, with
legal interests on all those amounts from the date the complaint was filed and
until they are fully paid. Said defendants are also sentenced to pay the costs
of these proceedings.”

The order appealed from denied appellant’s original and amended motion for
reconsideration and new trial.

Appellees commenced this action to recover from appellant the three pieces of
machinery described in their complaint, the sum of P18,000, with interest
thereon at the legal rate from the date of filing of the complaint, the
additional sum of P2,000 as attorney’s fees, and the costs of suit. The
complaint alleged that appellees delivered to appellant the machineries
described therein together with one D-7 Caterpillar Tractor with a Bulldozer, as
their share in the capital of the logging business they had agreed to engage in
with him for a period of one year from August 3, 1954; that their written
contract provided that appellant and appellees would divide, equally the profits
that may be realized in the business in excess of the sum of P1,750, this amount
having been agreed to be the least share of appellees in said profits, to which
they would be entitled even if the profits realized were less than said sum;
that the tractor was returned to appellees after one month use; that appellant
had paid to appellees, on account of their share in the profits, only the sum of
P3,000; that upon expiration of the period of one year agreed upon, appellees
demanded from defendant the return of the three pieces of machinery and the
payment of their share in the profits of their business, but appellant refused
to comply with such demand and instead asked that their agreement be
renewed.

Appellant filed his answer alleging that appellees had not complied with
their obligation to furnish him with the spare parts and accessories necessary
to place the machineries in working condition, to obtain which appellant had to
spend the sum of P19,640; that the D-7 Caterpillar was not returned by him but
was seized from him by virtue of a writ of replevin issued in another case. By
way of counterclaim, appellant sought to recover damages resulting from the
taking away from him of the D-7 Caterpillar Tractor and appellees’ failure to
comply with other stipulation of their agreement.

Because neither appellant nor his counsel appeared when the case was called
for trial on August 14, 1956, appellees were allowed to present their evidence,
and on May 30, 1957 the court rendered the decision appealed from.

On July 1, 1957 appellant filed his original verified motion for
reconsideration, the principal ground relied upon therein being that the notice
of trial was sent to the Manila address of Atty. Mariano Yap who was no longer
his attorney at that time; that in the latter part of December, 1955 appellant
requested a clerk in the law office of his attorney Francisco Cupin to tell the
latter to file his appearance in substitution of Atty. Yap “but due to the fact
that Atty. Francisco Cupin was busy at that time with his election protest in
connection with the 1956 mayoralty fight in Butuan City where Atty. Cupin was a
candidate, as found out later by the defendant Mr. Ago, said clerk was unable to
tell Atty. Cupin of this request and as a result no such change of counsel and
addresses was duly made”; that when the office of Atty. Yap received the notice
of trial, his clerk sent the same by ordinary mail to appellant in Butuan City,
which notice however, was never received by him; that these circumstances caused
his failure to appear at the trial.

The above-mentioned motion for reconsideration, however, was not accompanied
by any affidavit of merits. Appellees, on July 19, 1957, opposed it precisely on
this particular ground, and further contended that the negligence or mistake
committed by appellant and counsel was not excusable. On January 31,
1958 appellees filed a supplemental opposition alleging that appellant’s
attorneys of record were Attys. Calo, Cupin and Yap ; that it was only after 15
months from the date of the trial and 5 months after appellant learned of the
decision that said law firm withdrew its appearance from the case. In this
connection it is worthy of notice that the original motion for reconsideration
(R. A. pp. 64—68) was signed by Atty. Francisco R. Cupin, a member of said law
firm.

On February 1, 1958, that is, seven months after the filing of the
original motion for reconsideration, appellant filed a verified amended motion
for reconsideration and new trial, supported by the affidavits of appellant
Pastor D. Ago, in one of which he claimed that he had a good and valid defense
showing—contrary to the allegation made in his answer to the complaint to the
effect that their agreement was renewed for one year—that the written agreement
attached to the complaint as Annex “A” and on which appellees based their cause
of action had been cancelled prior to the filing of the complaint and upon the
seizure by replevin of the D-7 Caterpillar Tractor with bulldozer mentioned
therein—which seizure took place only a month after the contract was entered
into on August, 1954; that appellees had committed a breach of the aforesaid
agreement by not furnishing appellant with the required spare parts and
accessories to put the remaining machineries in running condition; that said
breach on the part of appellee entitled appellant to withdraw from the
agreement; that after the cancellation of the agreement on September 12, 1954,
the parties thereto agreed that appellant would simply rent the remaining
machineries at the rate of P750 per month, which rent appellant had been paying
until the present action commenced. Appellees objected to the consideration of
the amended motion claiming that the same was filed without leave of court and
not in accordance with the requirements of Section 3, Rule 17; that the
affidavit of merits did not state facts but mere conclusions; that it was filed
too late, that is, more than 7 months after appellant had received notice of the
decision.

After appellant had filed a reply to this opposition, the lower court issued
its order of March 7, 1958, the pertinent portions of which read as follows:

“The original motion was patently defective; and to admit, and give due
course to, the amended motion would in effect allow a motion for
reconsideration—or call it a petition for relief—beyond the period or periods
fixed by the Rules of Court. Indeed, the Court cannot accept defendants’ theory
that they were not legally notified of the trial or that they have filed
appropriate motion or petition with the necessary affidavits of merit within the
reglementary period.

“Wherefore, the motion for reconsideration as well as the amended motion for
reconsideration is denied for lack of merit.”

The issue decisive of this appeal, therefore, is whether or not the lower
court erred in denying the motion for reconsideration and the amended motion for
reconsideration and new trial mentioned heretofore. In the light of the facts
already stated above, we are constrained to hold that the lower court did not
commit this error.

The record discloses that the attorneys of record of appellant who filed his
answer to the complaint were Attys. Calo, Cupin and Yap . On the other hand,
appellant admits that the notice of the trial was sent to and was received by
Atty. Mariano Yap, a member of said law firm. At that time no withdrawal of
appearance had been filed neither by the aforesaid law firm itself nor by Atty.
Yap alone. Consequently, appellant’s own allegations show that the service of
the notice of the trial was proper and in accordance with the rules.

Moreover, appellant’s original motion, as the lower court held, was fatally
defective, firstly, because it did not sufficiently prove by affidavit or
otherwise the alleged accident, mistake or excusable negligence relied upon, and
secondly, the same was not supported by an affidavit of merits showing that
appellant had a good and valid defense.

This latter defect appellant obviously sought to cure more than seven months
later when he filed his amended motion for reconsideration and new trial. It
must be adverted to that when appellees, on July 19, 1957, filed a written
opposition to appellant’s original motion for reconsideration, they pointed out
as first ground in support thereof precisely the lack of affidavit of merits to
support the aforesaid motion. Although appellant had notice of this defect of
his motion since then, it was only on February 1, 1958, that is, almost seven
months thereafter that he made a desperate attempt to cure it by filing an
amended motion.

Now, as far as appellant’s appeal from the decision of the lower court is
concerned, little need be said. The evidence presented by appellees was
uncontradicted and sufficiently supports the findings of fact made and
conclusions of law drawn therefrom by the trial court. We agree, therefore, with
the lower court that appellees are entitled to the return of the three pieces of
machinery described in their complaint or to the payment of their value in the
sum of P30,000, and that in accordance with the contract Exhibit A, they are
further entitled to the sums of money specified in the dispositive part of the
decision appealed from.

Wherefore, the decision and the order appealed from are affirmed, with
costs.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L.,
Paredes, De Leon and Natividad, JJ., concur.