LAWYERS COOPERATIVE PUBLISHING COMPANY, PLAINTIFF-APPELLEE VS. PERFECTO A. TABORA, DEFENDANT-APPELLANT.

On May 3, 1955, Perfecto A. Tabora bought from the Lawyers Cooperative Publishing
Company one complete set of American Jurisprudence consisting of 48 volumes with
1951 pocket parts, plus one set of American Jurisprudence, General Index,
consisting of 4 volumes, for a total price of P1,675.50
which, in addition to the cost of freight of P6.90, makes a total of P1 ,082.10.
Tabora made a partial payment of P300.00, leaving a
balance of P1,382.40. The books were duly delivered and
receipted for by Tabora on May 15,
1955 in
his law office at Ignacio building, Naga City.

In the midnight of the same date, however, a big
fire broke out in that locality which destroyed and burned all the buildings
standing on one whole block including that where the law office and library of
Tabora were located. As a result, the books bought
from the company as above stated, together with Tabora’s important documents and papers, were burned during
the conflagration. This unfortunate event was immediately reported by Tabora to the company in a letter he sent on
May 20,
1955. On
May 23, the company replied and as a token of good will it sent to Tabora free of charge volumes 75, 76, 77 and 78 of the
Philippine Hearts. As Tabora failed to pay the monthly
installments agreed upon on the balance of the purchase price notwithstanding
the long time that had elapsed, the company demanded payment of the installments
due, and having failed to pay the same, it commenced the present action before
the Court of First Instance of Manila for the recovery of the balance of the
obligation. Plaintiff also prayed that defendant be ordered to pay 25% of the
amount due as liquidated damages, and the costs of action.

Defendant, in his answer, pleaded
force majeure as a defense. He alleged that the
books bought from the plaintiff were burned during the fire that broke out in
Naga City on May 15,
1955, and
since the loss was due to force majeure he
cannot be held responsible for the loss. He Played that the complaint be
dismissed and that he be awarded moral damages in the amount of P15,000.00.

After due hearing, the court a
quo rendered judgment the plaintiff. It ordered the defendant to pay the sum
P1,382.40, with legal interest thereon from the filing
of complaint, plus a sum equivalent to 25% of the total amount due as liquidated
damages, and the costs of action.

Defendant took the case to the
Court of Appeals, but the same is now before us by virtue of a certification
issued by that Court that the case involves only questions of law.

Appellant bought from appellee one set of American Jurisprudence, including one
set of general index, payable on installment plan. It was provided in the
contract that “title to and ownership of the books shall remain with the seller
until the purchase price shall have been fully paid. Loss or damage to the books
after delivery to the buyer shall be borne by the buyer.” The total price of the
books, including the cost of freight, amounts to P1,682.40. Appellant only made a down payment of P300.00
thereby leaving a balance of P1,382.40. This is now the
import of the present action aside from liquidated damages. Appellant now
contends that since it was agreed that the title to and the ownership of the
books shall remain with the seller until the purchase price shall have been
fully paid, and the books were burned or destroyed immediately after the
transaction, appellee should be the one to bear the
loss for, as a rule, the loss is always borne by the owner. Moreover, even
assuming that the ownership of the books was transferred to the buyer after the
perfection of the contract the latter should not answer for the loss since the
same occurred through force majeure. Here there
is no evidence that appellant has contributed in any way to the occurrence of
the conflagration.

This contention cannot be
sustained. While as a rule the loss of the object of the contract of sale is
borne by owner or in case of force mujeure the
one under o to deliver the object is exempt from liability, the application of
that rule does not here obtain because the law and the contract entered into on
the matter argue against it. It is true that in the contract entered into
between the parties the seller agreed that the ownership of the books shall
remain with it until the purchase price shall have been, fully paid, but such
stipulation cannot make the seller liable in case of loss not only because such
was agreed merely to secure the performance by the buyer of his obligation but
in the very contract it was expressly agreed that “the loss or damage to the
books after delivery to the buyer shall be borne by the buyer.” And such
stipulation is sanctioned by Article 1504 of our Civil Code, which in part
provides:

“(1) Where delivery of goods has
been made to the buyer or to a bailee for the buyer,
in pursuance of the contract and the ownership in the goods has been retained by
the seller merely to secure performance by the buyer of his obligations under
the contract, the goods are at the buyer’s risk from the time of such
delivery.”

Neither can appellant find
comfort in the claim that since the books were destroyed by fire without any
fault on his part he should be relieved from the resultant obligation under the
rule that an obligor should be held exempt from liability when the loss occurs
thru a fortuitous event. This is because this rule only holds true when the
obligation consists in the delivery of a determinate thing and there is
no stipulation holding him liable even in case of fortuitous event. Here these
qualifications are not present. The obligation does not refer to a determinate
thing, but is pecuniary in nature, and the obligor bound himself to assume the
loss after the delivery of the goods to him. In other words, the obligor agreed
to assume any risk concerning the goods from the time of their delivery, which
is an exception to the rule provided for in Article 1262 of our Civil Code.

Appellant likewise contends that
the court a quo erred in sentencing him to pay attorney’s fees. This is
merely the result of a misapprehension for what the court a quo ordered
appellant to pay is not 25% of the amount due as attorney’s fees, but as
liquidated damages, which is in line with an express stipulation of the
contract. We believe, however, that the appellant should not be made to pay any
damage because his denial to pay the balance of the account is not due to bad
faith.

WHEREFORE, the decision appealed from is
modified by eliminating that portion which refers to liquidated damages. No
costs.

Bengzon, C.J., Concepcion, Barrera, Paredes,
Dizon, Regala, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur.
Reyes, J.B.L., J., in the result.