GREGORIO APELARIO, DOING BUSINESS UNDER THE STYLE “GREGORIO TRADING,” PLAINTIFF AND APPELLEE, VS. INES CHAVEZ & COMPANY, LTD., DOING BUSINESS UNDER THE STYLE “FIDELITY MOTOR SUP…

Appeal from a judgment on the pleadings rendered by the Court of
First Instance of Manila on June 8, 1959in its Case No. 39822, and
certified by the Court of Appeals to this Court on the ground that only
questions of law are involved.

The record shows that on April 8, 1959, plaintiff Gregorio Apelario
filed a complaint against Ines Chavez & Company, Ltd., a limited
partnership, and its general partner, Ines Chavez. It was therein
averred, in substance, that on or about October 28, 1958, the defendant
partnership had purchased on credit from plaintiff ten sets of axle
assemblies for the sum of P2,400.00 (par. 3): that on December 6, 1958,
defendant delivered in payment to the plaintiff two postdated cash
checks for P1,200.00 each, drawn against the Philippine Bank of
Commerce (par. 4); that when the checks were presented for payment,
they were dishonored for lack of funds, whereupon the defendant took
back the checks and replaced them with two other checks, also
postdated, for the same amount as before (par. 5); that these checks
were also dishonored (par. 6); that the plaintiff, on February 23,
1959, demanded payment in cash, but defendant refused to pay (par. 7);
that because of such malicious and wilful refusal, plaintiff had to
engage the services of counsel for an agreed fee of P750.00 (par. 8);
that defendant was about to remove and dispose of its properties with
intent to defraud the plaintiff, wherefore a writ of attachment became
necessary (par. 9); and prayer was made for judgment in favor of
plaintiff and against the defendant for the sum of f2,400.00, with
legal interest from the filing of the complaint, and for P750.00
attorney’s fees, with expenses and costs. Plaintiff also moved and duly
obtained a writ of attachment.

Defendants obtained the lifting of the attachment by filing a
counterbond on April 14, 1959; and on May 7, 1959, they filed an answer
admitting the allegations of paragraphs 1 to 6 of the complaint;
admitting that plaintiff had demanded payment of F2,400, but pleaded
that—

“defendants could not pay the plaintiff, because
they have so many accounts receivables which have not yet been paid to
them, of which fact the defendant, was duly informed by the plaintiff
and thereby requested to wait a while.” (B. App. p. 27).

Defendants further averred having no knowledge or information of the
allegations of paragraph 8 of the complaint concerning the attorneys’
fees; denied having performed any act of removal or disposal of its
property, branding plaintiff’s allegations in paragraph 9 to be false
and malicious; and prayed for dismissal of the complaint.

Upon motion of the plaintiff, and over the objection of defendants,
the trial court rendered judgment on the pleadings, sentencing
defendants to pay P2,400, plus legal interest from the filing of the
complaint; and P500 attorney’s fees.

Defendants appealed, and now claim that it was error for the lower
court to have rendered judgment on the pleadings, because the answer
raised material issues.

We find no merit in the appeal. As pointed out in the judgment
complained of, the defendants-appellants had admitted all the material
allegations of the complaint concerning the existence of the debt and
its non-payment. The pleaded excuse, that they had requested plaintiff
to, wait because appellants’ many accounts receivable had not yet been
collected, is clearly no defense, for a debtor can not delay payment
due just to suit its convenience, and the creditor is not an
underwriter of his debtor’s business unless so stipulated.

The denial of the averment concerning the stipulated fees of
plaintiff’s attorney tendered no genuine issue, for even without such
allegations, it was discretionary in the court to allow reasonable
attorneys’ fees by way of damages, if it found just and equitable to
allow their recovery (Civ. Code, Art. 2203). In this case, allowance of
such fees was justified since defendant admitted having issued to the
creditor checks without funds, not once but twice. It is well to note
that the P750 attorney’s fees claimed by plaintiff were reduced P500
only.

Nor does the denial of the complaint’s averments concerning the
fraudulent removal and disposition of defendant’s property constitute a
bar to a judgment or the pleadings, since the defendant neither claimed
nor asked for any damages on account of the issuance and levy of the
writ of attachment.

Wherefore, the appealed judgment of the Court of First Instance is affirmed. Costs against appellants.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes and De Leon, JJ., concur.