ANDRES P. BARING, PLAINTIFF-APPELLEE, VS. CESAR M. CABAHUG, DEFENDANT-APPELLANT.

With Andres P. Baring as lessor, and
Cesar M. Caba­hug as lessee, both entered on June 26,
1960 into a contract of lease over a parcel of land in Pajo,
Opon /now Lapulapu City/, Cebu, Lot No. 202 of the Opon
Cadastre, for a period of five (5) years
starting from July 1, 1960.  The rental agreed upon was P75 per month, payable as fol­lows: 
P375 upon signing of the agreement, as advanced ren­tals for five
(5) months or from July 1, 1960
to November 30, 1960; thereafter,
P225 advance rentals for the next succeeding three months, payable on the first
five days of every three months.

Pursuant thereto, Cabahug paid P375 on the date of execution of the
lease.  On December 3, 1960, he paid P75 as part payment of the advance rentals for the three-month
period from December 1960 to February 1961. 
On February 1, 1961, Baring’s counsel sent Cabahug a
demand letter.  On May 22, 1961, a second demand letter was writ­ten.  Altho Cabahug admittedly received said letters, no further
payment of rentals was made.

On February 8, 1962, Baring sued Cabahug in the Court of First Instance of Cebu for specific performance of the lease contract, i.e., payment of rentals due, plus dama­ges
and attorney’s fees.

On April 24, 1962,
Cabahug answered with a counter­claim for rescission
of the contract, with damages, alleging
that he signed the lease on the strength of Baring’s
misrepresentation that the parcel of land is the same one formerly owned by
Philippine Refining Co., Inc., and that, furthermore, the subject lot has not
been delivered to him until now.

After Baring replied to the counterclaim on April 30, 1962, trial started, on November 13, 1962.  It was set to be continued on November 20 and
21, 1962.  Plain­tiff continued
testifying on cross-examination on Novem­ber
20, 1962.  The parties then
agreed to continue the next trial on January
25, 1963.  Attorney for the defen­dant, however, on January 25, 1963, submitted a written
motion for postponement, with the opposing counsel’s con­formity.  So the case was reset for March 26, 1963, no­tice of which was
personally received by defendant’s coun­sel.

On March 26, 1963,
neither defendant nor his counsel appeared in court.  Plaintiff offered his evidence and the case
was submitted for decision. 
Subsequently, on June 28, 1963,
the Court of First Instance rendered its decision, ordering defendant to pay
plaintiff P2,250.00 as rentals for 1961, 1962 and
January to June of 1963, plus P300.00 attorney’s fees and the costs.

On August 14, 1963
defendant’s counsel filed a mo­tion for new trial stating that his
non-appearance was due to the negligence of his office clerk who forgot to note
in his trial calendar the date stated in the notice and who thereafter
misplaced or lost said notice; further, defendant allegedly has a good and
valid defense.  Submitted therewith were
an affidavit of the clerk and an affidavit
of merits, signed by defendant’s lawyer, as­serting that the parcel of land
covered by the lease was never delivered to defendant and that what defendant
has occupied lies outside of said lot, “as will be shown by competent
evidence later on.”

Said motion was denied on September
13, 1963.  So, also, a motion
to reconsider the denial, was itself de­nied.  From the denial orders, defendant has
appealed di­rectly to Us, alleging that said denial
does not serve the ends of justice, is attended with abuse of discretion and
overlooks defendant’s good and valid defense.

The rule is that motions for new trial rest on the sound
discretion of the trial court (Porciuncula v. Adamos, L-11519-20, April
30, 1958, 55 O.G. 32).  Among the grounds therefor
is excusable negligence (Sec. 1, Rule 37, Rules of Court), and defendant’s motion invoked such ground.  It is clear from the record however that
defen­dant’s counsel was inexcusably negligent
in failing to take note of the date for the trial in question.  As sta­ted, he personally received the notice
from the court; it was on his motion that said trial was postponed; having
received the notice of the court, he should have forth­with entered the date
for the next trial in his calendar, but for no excusable reason he neglected to
do so.  The fact that he delegated to his
clerk the task of noting it down in his trial calendar and that the latter
forgot to do so, and even lost the notice itself, does not consti­tute
excusable negligence.  For it is the duty
of counsel to adopt and strictly maintain a system that efficiently takes into
account all court notices sent to him.  And for want of diligent supervision, the
inexcusable negli­gence of the clerk is thus imputable to the aforesaid coun­sel.

As to the defense stated in the affidavit of merits, the same
does not deserve a re-opening of the case. 
If Indeed the parcel of land was never
delivered to the les­see, it is strange why he made a total payment of P450.00
for rentals and why he never complained for non-delivery of the lot until he
filed his answer to the complaint on April
24, 1962 or about a year and 9 months after the con­tract went into
effect.  Defendant’s silence during this
period, notwithstanding plaintiff’s two demand letters re­ceived by him, belies
his pretenses to non-delivery of the land.

WHEREFORE, the appealed order denying the motion for new
trial is affirmed, with costs against appellant.

SO ORDERED.

Reyes, JBL, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.

Concepcion, C.J, and Dizon, J., on official leave.