TEODORO VAÑO, PETITIONER VS. HIPOLITO ALO, AS JUDGE OF THE COURT OF FIRST INSTANCE OF BOHOL, PEDRO DUMADAG, AND ESMENIO JUMAMUY, RESPONDENTS.

Petitioner instituted this action of certiorari to reverse an order
of the Court of First Instance of Bohol refusing to admit his fourth
amended complaint. The record discloses the following facts and
circumstances as a background for the petition:

Around the year 1947 respondents herein Pedro Dumadag and Esmenio
Jumamuy, purporting to be the president and general manager,
respectively, of an unregistered poration or association denominated
APBA Cinematographic Shows’, Inc., leased certain theatrical equipments
from the late Jose Vaño at an agreed monthly rental of P200. Jose Vaño
having died, his administrator, the present petitioner, filed an action
in the Court of First Instance of Bohol for the return of the
theatrical equipments and the payment of the agreed rentals. The
original complaint was filed in September, 1947. Upon the filing of
this complaint the association was dissolved. Counsel for the
defendants below, respondents herein, appears to have insisted that all
the members of the association should be made parties defendants, but
petitioner was not inclined to do so. On January 28, 1953, the court
ordered petitioner’s counsel to submit a fourth amended complaint. This
complaint in part alleges:

2. That in or about February 1947, defendants
   purporting to be the president and general manager respectively of the
   so-called “APBA” Cinematographic Shows Inc., leased from the late Jose
   Vaño, the aforementioned Theatrical Equipments at an agreed monthly
   rental of TWO HUNDRED (P200) pesos and that he (Jose Vaño) shall pay
   the expenses in the installation, for the same shall be returned on his
   demand;

3. That said Theatrical Equipments mentioned
   in paragraph 1, had been completely installed at the beginning of the
   month of February, 1947, at the “APBA” building Calape, Bohol, and
   since then the said show house begun its operation;

4. That upon inquiry, the plaintiff was informed and so allege that the
   “APBA” Cinematographic Shows Inc., has never been registered, hence
   Dumadag and Jumamoy who acted as the president and general manager
   respectively are the ones made as party defendants ;

Plaintiff did not include the members of the unregistered
corporation as parties defendants, and so they were not summoned. On
September 14, 1953, the court a quo entered the order complained of, which is as follows:

The association represented by defendants Pedro
Dumadag and Esmenio Jumamuy, is not included as party defendant in the
fourth amended complaint. It is a legal requirement that any action
should be brought against the real party in interest.

In view
of the opposition filed by the defendants Pedro Dumadag and Esmenio
Jumamuy, the court denies the admission of plaintiffs fourth amended
complaint dated February 17, 1953, and objected to on the date of the
trial.

The fourth amended complaint (paragraph 2, supra) alleges that
defendants,, purporting to be the president and general manager of the
unregistered corporation, leased the theatrical equipments from the
plaintiff, petitioner herein. Said defendants, according to the
complaint, did not enter into the contract in the name or on behalf of
the corporation; consequently, the law applicable is Article 287 of the
Code of Commerce, which provides:

ART 287. A contract entered into by the factor in
his own name shall bind him directly to the person with whom it was
made; but if the transaction was made for the account of the principal,
the other contracting party may bring his action either against the
factor or against the principal.

The opposition of the respondents to the admission of the fourth
amended complaint is procedural in nature, i.e., that notwithstanding
the fact that the APBA was not registered, all its members should be
included as parties defendants as provided in section 15 of Rule 3 of
the Rules of Court. The trial court was of the opinion that the
inclusion of the members was necessary as it considered them as “real
parties in interest.” In this respect, the trial court committed an
error as the rule requiring real parties to be impleaded is applicable
to parties plaintiffs, not to parties defendants.

It is the absolute prerogative of the plaintiff to choose the theory
upon which he predicates his right of action, or the parties he desires
to sue, without dictation or imposition by the court or the adverse
party. If he makes a mistake in the choice of his right of action, or
in that of the parties against whom he seeks to enforce it, that is his
own concern as he alone suffers therefrom. Granting that the members of
the unregistered corporation may be held responsible, partly or wholly,
for the agreement entered into by the officers who acted for the
corporation, the fact remains that the plaintiff in the case at bar
chose not to implead them, suing the officers alone. If the officers
desire to implead them and make them equally responsible in the action,
their remedy is by means of a third party complaint, in accordance with
Rule 12 of the Rules of Court. But they can not compel the plaintiff to
choose his defendants. He may not, at his own expense, be forced to
implead any one who, under adverse party’s theory, is to answer for the
defendants’ liability. Neither may the court compel him to furnish the
means by which defendants may avoid or mitigate their liability. This
was in effect what counsel for respondents wanted to compel the
petitioner to do, and which the court was persuaded to do— force the
plaintiff to include the members of the unregistered corporation as
parties defendants-r-and when plaintiff refused to do so, it rejected
his fourth amended complaint.

The court’s order, in so far as it demands the inclusion of the
members of the unregistered corporation, has evidently been induced by
a confusion between an indispensable party and a party jointly or
ultimately responsible for the obligation which is the subject of an
action. The members of the unregistered corporation could be
responsible for the rentals of the equipments jointly with their
officers. But the complaint specifically alleges that said officers
entered into the contract by themselves, hence the presence of the
members is not essential to the final determination of the issue
presented, the evident intent of the complaint being to make the
officers directly responsible. (Article 287, Code of Commerce, supra.)
The alleged responsibility of the members of the corporation for the
contract to the officers, who acted as their agents, is not in issue
and need not be determined in the action to fix the responsibility of
the officers to plaintiff’s intestate, hence said members are not
indispensable in the action instituted.

We find that the trial court abused its discretion in refusing to
admit plaintiff’s fourth amended complaint. The writ prayed for is
hereby granted, the order complained of reversed, and the complaint
ordered admitted, and the court a quo is hereby directed to
proceed thereon according to the rules. With costs against respondents
Pedro Dumadag, and Esmenio Jumamuy.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion and Reyes, J. B. L., JJ., concur.