THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. MARIANO LIM, DEFENDANT AND APPELLANT.

PER CURIAM:

It is our opinion that the record demonstrates over-whelmingly the existence
of a relation of trust and confidence between Pablo Monserrat and Mariano Lim,
the defendant, such as is charged in the information, by virtue of which the
latter was under an obligation to act for and on behalf of the former, to
disclose the facts truthfully, to act fairly and justly, and to account
faithfully. That relation was established upon Lim’s own initiative. It was
induced by false representations and pretense; it was continued by active deceit
and by a failure to disclose truthfully the facts; and it was terminated without
an accounting to Monserrat by reason of the continued misrepresentation, deceit,
and failure truthfully to state the facts on the part of Lim.

We base this conclusion upon the oral and documentary evidence in the case
and especially upon Exhibits 1, 2, 4-a, 4-b, 4-c,
4-d, 5, 7, and 9.

It is true, as counsel argue that Monserrat, the complaining witness and the
person alleged to have been defrauded, made at times certain statements as a
witness which, if taken literally and without regard to the context, might
militate against the existence of the relation which we have held the evidence
establishes. It should be noted, however, that Monserrat, almost in the same
breath, stated facts and detailed circumstances which showed what the relation
really was. The statements referred to are largely conclusions of law which
Monserrat drew concerning the nature of the relation between him and Lim in
response to questions put to him which required, in part at least, legal
conclusions as answers.

Moreover, the actual relation between Monserrat and Lim in the transaction in
question is not determined by the name which Monserrat puts upon it or which he
might put upon it. One ignorant of law might readily declare that a certain
state of facts created one relation when, as a matter of law, it created quite a
different relation. While Monserrat may not have been able to give the legal
name of the relation which was established between him and Lim he, nevertheless,
contended, and now contends, that that relation was of such a character that Lim
had no right to induce him, by fraud and deceit, to accept P2,492 for land for
which Lim, by virtue of almost the same act, received P4,461.50.

We have read with great care and interest the printed argument of counsel for
the appellant; and we listened with the same care and interest to their oral
argument. In spite of these arguments, however, we do not believe that it can be
legitimately drawn from the record that the defendant Lim was a purchaser of the
land in question from Monserrat in his own name and that, in the negotiations
between him and Monserrat, he occupied the position of one who purchased from
Monserrat in his own name and on his own behalf to resell to the railroad
company. Substantially none of the evidence in the case, either oral or
documentary, except that of Lim himself, supports this theory. The evidence
requires, on the contrary, a conclusion altogether different. Even the testimony
of Lim himself, if taken as true, fails in material respects of fully and fairly
explaining the case which the testimony and exhibits of the prosecution
establish against him.

We do not believe that the court erred in excluding Exhibits N-l to N-48, as
they were offered in evidence by counsel for the defendant We think they were
properly excluded on the ground that they were immaterial and irrelevant. To
give them even an appearance of bearing it would have been necessary to show
that Monserrat knew of the transactions which those exhibits embody, and was
familiar with the custom which it is claimed they establish. Moreover, the fact
that the defendant did with others what he did with Monserrat is slight, if any
evidence, of the correctness of the contention that his conduct with Monserrat
was fair and legal.

We have carefully considered the argument of counsel based on that fact that
Lim paid Monserrat the purchase price of the land out of his own funds by means
of his personal check. It is true, as counsel contend, that this fact might,
under proper circumstances, corroborate the claim of Lim that he purchased the
land from Monserrat and took title thereto in his own name. It should not be
overlooked, however, that it also supports the contention of the prosecution
based upon the charge that Lim, throughout the transaction, deceived and misled
Monserrat; and that one of the most artful conceptions in the scheme of
deception was that very payment, as it rided Lim of the danger which would have
followed an attempt of Monserrat alone, or of Monserrat and Lim together, to
collect that sum from the railroad company. It may be admitted as true that,
where a given fact may be construed either for or against the accused, he is
entitled to have it construed in his favor. That rule, however, if it is a rule,
is subject to the exception that a fact which is susceptible of being fitted
into one or the other of two theories, should be fitted into that theory in
which it will produce its natural and logical effect.

We have examined with care all of the assignments of error presented to us by
counsel for the appellant. We do not consider it necessary to deal with each one
in detail. All have been met with the statements which we have already made.
Most of them are based upon the construction or interpretation which counsel
believe we should give to the testimony and the exhibits. The trial court and
this court believe that the application we have made of the testimony, both oral
and documentary, is not only the natural and ordinary but the necessary
application. However much the words and sentences of the evidence may be
strained and twisted, the striking fact remains that Monserrat received P2,492
for a document transferring lands, for which very same document Lim, by a turn
of his hand, received P4,461.50. There is no explanation in the record which
even approaches sufficiency which discloses why Monserrat should deliver to Lim
for P2,492 a document for which he could have received P4,461.50 if he had
delivered it to the Railroad Company in whose favor it was already drawn and to
which, to all intents and purposes, it already belonged.

Finally, we find little difficulty with the contention that the defendant was
exempt from prosecution by virtue of the immunity conferred by section 28 of Act
No. 2307. Even admitting, for the sake of the argument made by counsel for the
appellant, that the defendant comes within the provisions of that Act, which is
seriously doubted by the prosecution, we are of the opinion that he may waive
the privilege; and we have no question whatever of the fact that he did waive it
on the trial of this case.

The facts as we find them and as the lower court found them bring the case
clearly within article 535 of the Penal Code.

The penalty imposed being within the provisions of law pertaining thereto,
the judgment of conviction and the sentence imposed thereunder are hereby
affirmed, with costs against the appellant. So ordered.

Arellano, C. J.,
Carson, Moreland, Trent, and Araullo, JJ.

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RESOLUTION ON MOTION FOR REHEARING.

October 13, 1917

PER CURIAM:

This court having affirmed the judgment rendered by the Court of First
Instance and appealed by the defendant (whereby he was sentenced to the penalty
of one year, eight months, and twenty-one days’ imprisonment, to indemnify Pablo
Monserrat in the sum of P1,979.50, or, in case of insolvency, to suffer the
corresponding subsidiary imprisonment, and to pay the costs of the trial), his
counsel filed a written motion for a rehearing and requested his client’s
acquittal, and, in a contrary case, that the Supreme Court expressly decide the
errors assigned to the judgment of the lower court and set forth a new statement
of the facts in order that said counsel might know of the true nature of the
crime for which the defendant was sentenced.

To show fully in what the criminal acts committed by the defendant consisted,
herebelow we give a specific statement of the facts as disclosed by the record
to have been duly proven.

In December, 1910, the defendant, Mariano Lim, having learned that between
the pueblos of Calauang and Magdalena there were four parcels of land belonging
to Pablo Monserrat which the railroad company needed in order to proceed with
the laying of the railroad line, took steps with a view to obtaining the sale of
these four parcels of land to the company; but, on taking up the matter verbally
with the owner of the land, the latter told the defendant that he, the owner,
had already begun preliminary negotiations of sale directly with the railroad
company, through an engineer in its employ. For this reason Monserrat did not
state to Lim the price for which he wished to sell his land, although later,
about January, 1911, as Monserrat did not succeed in selling his land for P1 a
meter, inasmuch as the railroad company would offer him only 7 centavos a meter,
Monserrat, upon the previous invitation of Lim tendered him through an agent of
Lim’s in Laguna, came to Manila to confer with Lim, who after a few days stated
to Monserrat that the company was willing to pay him more than it had paid the
other land-owners and would give him P500 more than the price previously
offered.

Monserrat being firmly convinced, through Lim’s statements to him, that he
could not obtain a better price than the one Lim had offered him, came to Manila
to confer with the latter, and they finally reached an agreement whereby
Monserrat sold his land to the company for P2,482, paid to him in advance by the
defendant through means of a check, and Monserrat issued the receipt Exhibit 2,
dated March 25, 1911. Thereupon Monserrat signed four deeds of sale of his four
parcels of land, conveying this property to the railroad company. The spaces in
these deeds intended for the insertion of the price were left in blank and the
price was not fixed therein until several days after Monserrat had returned to
and was in the pueblo of his residence. It then appeared that the company paid
P4,461.50 for the four parcels of land sold to it. The defendant collected this
sum, keeping the profit of P1,979.50, which was the difference between the said
P4,461.50 and the P2,482 received by Monserrat.

In the negotiation above mentioned which culminated in the purchase by the
railroad company of the four parcels of land sold by their owner Pablo
Monserrat, the defendant Lim intervened as an agent and intermediary between the
owner of the land, the vendor, and the railroad company, the purchaser, and
officiously represented both parties in the arrangement of the matter. The
nature of his intermediary intervention appears fully proven in the record, by
both documentary and oral evidence.

If the record actually disclosed the slightest proof that the aggrieved
party, Monserrat, sold to the defendant, Lim and not to the company, the said
four parcels of land, it would be a great injustice to decide this case by
convicting the defendant of having swindled the complainant out of the amount of
the difference between the price of the sale and that of the resale.

The owner of the four parcels of land could have sold them to the defendant
in the manner and for the price which he deemed proper to demand of the
purchaser, and if the purchaser should subsequently have succeeded in reselling
the land to the railroad company, as he states that he did, there would be
nothing unlawful or censurable in these successive operations that could be any
reproach upon the skillful and shrewd agent who succeeded in netting himself a
profit of nearly P2,000.

But, notwithstanding the formation of a voluminous record and the defendant’s
introduction of a huge amount of evidence in support of his averment that the
sale made by Monserrat of his four parcels of land was covenanted for the
defendant’s account and in his favor, and not in behalf of the company, the
truth is that the alleged fact of the sale in the defendant’s favor in nowise
appears to be proven; on the contrary, the record shows conclusive proof, based
chiefly on the very acts of the defendant himself toward, and his statements to,
the vendor, all of which tend to show undeniably that while the defendant Lim
was acting in the officious role of agent and intermediary, he made statements,
performed and executed acts tending, all of them from the beginning, toward an
agreement upon, and realization of, the sale on the part of Monserrat of his
land and in favor of the railroad company, which needed it for the laying of its
line.

It is to be noted that when the defendant invited Monserrat to confer with
him in regard to the sale of said parcels of land, he already knew that the
owner had tried to sell them to the company—a sale which was not effected on
account of the excessive price that Monserrat asked for them.

The defendant Lim never stated, either by letter or verbally, that he desired
to buy the land for himself, but, on different occasions, constantly and always
gave it to be understood by the vendor that the sale would be made on behalf of
the railroad company, which was in need of acquiring the property for the
construction of its line. In endeavoring to persuade the vendor Monserrat to
accept the price which, as Lim said, the railroad company had tendered, with the
increase of P500, Lim stated to Monserrat, and by letter, that the latter could
accept it as an advantageous price which the company was willing to pay for the
land, and that indeed he ought to accept it, in order to avoid forcing the
company to resort to the courts by bringing expropriation proceedings, and
advised Monserrat that should it do so, the result might be unfavorable to him
as regarded the price of his land.

Monserrat, to judge from his acts, relying upon Lim’s statements constantly
believed, and so repeatedly said in his testimony given at the trial, that Lim’s
intention and purpose were to sell Monserrat’s land to the railroad company, and
he never heard or knew that Lim desired to purchase it, nor, during his
negotiations with the latter, had he any knowledge that he was selling it to
Lim, or that Lim had bought it for himself. Such were the statements insistently
made by Monserrat in his testimony. He positively declared that he believed that
Lim was acting as an intermediary between the vendor and the company, and it is
very likely, if not certain, that such was his belief, inasmuch as Monserrat,
from the time that he and the defendant discussed the price, until the signing
of the receipt of payment and the four deeds of sale on behalf of the company,
did not even once see the head of the company, or any of its employees.
Therefore, from all those transactions and happenings, the vendor very rightly
concluded that Lim, with whom he closed the deal for the sale of his land and
from whom he received the price thereof, acted at least in the capacity of an
intermediary, as Monserrat stated in his testimony, or as an agent and broker
who discharged his commission in representation of the company.

In the letter, Exhibit 1, addressed by the defendant Lim to the complaining
witness Monserrat, the former announced to the latter that the writer had
succeeded in getting an increase of P500 over the price of P1,609 for the four
parcels of land and their improvements—an increase obtained, as recited in the
letter, from the attorneys of the company by way of a compromise—and he warned
Monserrat that if he did not reply definitely before March 25, 1911, said
attorneys would resort to the courts and fix the price of the land at its
assessed valuation for the purpose of its expropriation in accordance with law;
and, finally, said letter further stated that Lim believed that also Attorney
Ordovesa would be of the same opinion, to wit, that they (writer and addressee)
ought to accept the P2,109 as the reasonable price of the four parcels of land,
because, were the matter taken into court, a judgment might be rendered fixing a
price but a little higher than the assessed valuation, that is, equal to that
assigned in the judgments given in the cases for the expropriation of the lands
from Calamba to Bay, in which event only the sum of P1,600, without the said
increase of P500, would be collected; therefore Lim expected an answer from
Monserrat before said date of March 25th. This letter contains no word or phrase
whatever tending to show that Lim bought for himself and Monserrat sold him the
said land, but does show that the sale be made to the railroad company. The
whole contents of the letter evidences that the defendant Lim, as Monserrat
rightly asserts in his testimony, acted and negotiated as an intermediary,
mediating with officious cunning between the owner of the land and the railroad
company.

The document Exhibit 2—which attests that Monserrat received from Attorney
Lim the sum of P2,482, as the net and convenanted value of Monserrat’s lands,
expropriated with their improvements by the railroad company, after deducting
the expenses and Lim’s professional fees for his management in the matter—does
not prove that Lim purchased the lands from their owner, Monserrat.

The latter, being convinced by Lim’s deceitful statements, that he could not
obtain a better price for his land than that offered him by Lim, in
representation of the railroad company, with the additional sum of P500,
acquiesced in the offer, concluded the contract, and received the price which
he, being deceived, believed was just, and immediately thereupon signed the four
deeds of sale of his land in favor of the railroad company, and in affixing his
signature to them did not notice that the lines or spaces therein reserved for
the respective prices were in blank. Under the belief that he had no other
recourse than to sell his land at the price communicated to him by the defendant
Lim in behalf of the company, Monserrat had no objection in accepting that price
from Lim and did not notice that it was not the company, or any of its
employees, that paid him for his land, but that it .was the agent and
intermediary Lim, for which very reason the vendor readily believed the
defendant’s deceitful statements and accepted the price offered for his land as
being the highest that the railroad company could pay, as he was told that it
was by the agent and intermediary Lim.

The acts performed by the vendor in receiving the money and signing the
document Exhibit 2, the negotiations and statements of the defendant, as well as
the contents of this document, in no respect afford the slightest proof that the
defendant was the purchaser of the properties in question, in face of the
irrefutable evidence that the sale was made to the railroad company, as affirmed
by the owner of the land, for this fact appears not only by the contents of the
deeds signed on the same date as that of the receipt of the price, but also by
other documents, statements and acts made and performed by the defendant Lim,
who in fact did act as an agent and intermediary for the arrangement and
realization of the sale between the owner of the land and the purchasing
company.

We merely classify the acts that are the subject-matter of the present cause
and weigh the evidence thereto pertaining, without holding that account should
be taken of other similar acts performed by the defendant and recorded in other
documents relative to similar operations. Therefore, the contents of these
latter documents cannot justify as lawful the acts herein complained of.

It is indeed remarkable what efforts have been displayed by the defendant’s
counsel to produce the conviction that the land was sold by Monserrat to the
defendant; but notwithstanding all those efforts, certainly worthier of a better
cause, this court unfortunately has not found the slightest proof of the truth
of the alleged sale of the land to the defendant; on the contrary, we have found
that all the acts performed by the defendant were in representation and on
behalf of the railroad company. For this reason we deem it unnecessary to enter
upon a discussion of particulars and details which perhaps might cast more
darkness than light on the facts involved in this case.

If Monserrat did not sell his four parcels of land to Lim, as it so appears
to have been fully proven at the trial, notwithstanding the lengthy allegations
made by the latter in his defense, and if these parcels were expressly sold by
their owner to the railroad company through means of negotiations conducted
by.the defendant himself, it must be recognized that the sum of P1,979.50 (which
is the difference between the P2,482 received by Monserrat as the supposed price
of his land sold to the company, and the P4,461.50 which it actually paid for
the land), was, with deceit and bad faith, unlawfully appropriated by the agent
and intermediary, in fraud and to the prejudice of the vendor Monserrat.

When Lim hastened to pay Monserrat the sum of P2,482 the very moment he
succeeded in convincing the latter that it was the best price Monserrat could
get by the sale of his land, inasmuch as, with the exception of the additional
sum that the agent and intermediary claimed to have gotten, the railroad company
was not willing to pay more, it cannot be doubted that the defendant acted in
agreement with some of the employees or attorneys of the company,’ and the sum
of P4,461.50, which the company was to pay for Monserrat’s land, surely had
already been fixed and agreed upon between them and the defendant; so that,
under these circumstances, the defendant had no objection in advancing to the
vendor the price agreed upon between himself and the complaining witness, for
Lim well and positively knew that he would recover the sum advanced by him to
the owner of the land immediately upon the latter’s signing, as he did, the
deeds of sale, and, for the purpose of concealing the true price and
consummating the acts that constitute estafa, the lines reserved for the
insertion of the selling price were left in blank.

Between Monserrat and Lim there was no covenant or agreement whatever
authorizing the agent and intermediary to keep for himself the extra sum that he
got from the railroad company; on the contrary, from the commencement of the
negotiations he carefully tried to conceal all knowledge of the price that the
company would pay and he employed all the fraudulent means conducive to convince
Monserrat that he could not possibly obtain a better price than that offered him
by the defendant, with the additional sum which Lim assured him that he, the
defendant, had succeeded in obtaining from the vendee company in behalf of the
vendor.

It is to be noted that after Monserrat had attempted to sell his land
directly to the railroad company and had hopelessly failed in the attempt, he
never sought to confer with the director of the company or with any of its
employees or attorneys, but with absolute confidence relied upon the discretion
and management of the defendant and accepted as true all that the latter told
him, until he received the sum agreed upon between them both and had signed the
receipt therefor and the deeds of sale in behalf of the company, on which
occasion the defendant acted as an agent and intermediary in representation of
the purchaser, for the purpose of keeping for himself the amount embezzled.

The facts that occurred relative to the sale of the land, and in which there
was fraud and deceit on the part of the defendant intermediary, were established
at the trial and were founded, not only on the testimony of the complaining
witness and the defendant Lim, but also on the precedents, details and other
particulars connected with the negotiations between them both. Had the
intermediary Lim not been sure that the railroad company would pay him the
amount that it subsequently did, he would not have advanced to the vendor the
lesser price, out of his own funds. But he made that advance without the
slightest objection because he was sure that Monserrat already signed the deeds
of sale with the spaces intended for the insertion of the price, left in blank,
and the vendor returned to his pueblo in Laguna on the same date that he
received the money.

The record, then, shows conclusive proof that the defendant appropriated to
himself nearly P2,000 without the knowledge and consent of Monserrat, who had a
perfect right to collect this sum as a part of the price of his land acquired by
the railroad company; and, as the defendant succeeded in wrongful profiting by
such a large sum through means of his false statements to the deceived party,
Monserrat, who believed him to be an agent acting in representation of the
company—a belief affirmed by the receipt of the money as the price of his
land—it is evident that the defendant committed the crime of estafa, inasmuch
as, craftly and deceitfully, he defrauded Monserrat and kept for himself the sum
of P1,979.50, to the latter’s prejudice. Had the defendant acted in good faith,
he would have given Monserrat an account of this sum. Therefore, under the
provisions of article 534, paragraph 3, and article 535, paragraph 5, of the
Penal Code, the defendant incurred liability and the corresponding penalty.
Paragraph 5 of said article 535 prescribes:

“The penalties prescribed by the next preceding article shall be imposed
upon:

*           *           *           *           *          
*           *

“(5) Any person who, to the prejudice of another, shall convert or
misappropriate any money, goods, or other personal property received by such
person for safekeeping, or on commission, or for administration, or under any
other circumstances giving rise to the obligation to make delivery of or to
return the same, or shall deny having received such money, goods, or other
property.”

The clause contained in the paragraph just above quoted: “or under any other
circumstances giving rise to the obligation to make, delivery of or return the
same (money, goods, or other property)” refers to a civil obligation, and, in
the instant case, upon the defendant Lim becoming the agent, representative, and
intermediary in the specific business deal of the purchase by the railroad
company of four parcels of land belonging to the complaining witness Monserrat,
it was his duty to make delivery of all the sum paid by the company and which he
had received as the integral price of said four parcels of land by reason of his
intervention and negotiations as an intermediary in the business transaction of
the purchase and sale of Monserrat’s land—a business which was not the
defendant’s own and which solely interested the owner of the land and the
railroad company.

The nonfulfillment of the obligation to deliver to Monserrat the P1,979.50,
part of the price of the land sold, and the appropriation to himself of this sum
by means of craft and deceit constitutes the crime of estafa, for the very
reason that the agent and mediator, Lim, had absolutely no right to take that
money for himself to the prejudice of its owner.

It is true that between Lim and Monserrat no stipulation whatever had been
made as to how and in what manner Lim should fulfill his trust, or as to what
remuneration he should collect for his work; nor does the record show what
agreement there was between Lim and the railroad company, or between him and
some of the latter’s employees. It is, however, unquestionable that both parties
accepted the mediatory transactions of the officious agent, Lim, whose
negotiations were subsequently duly ratified by the company, which accepted the
deeds of sale and paid the price of the land, and Monserrat also ratified them
by consenting to the sale of his land to the railroad company and by his
acceptance of the supposed price of the sale, which mutual ratification produced
the effects of an express authorization on the part of the vendor and on that of
the purchaser, the contract of sale being carried into execution and consummated
through means of the agent and Attorney Lim who, consequently, contracted the
includible obligation to deliver to the owner of the property the whole amount
of the price of the sale received by him from the purchaser company. The
defendant, on his part, cannot rightly allege any ground or valid reason to
warrant and justify his appropriation of the sum embezzled, as there was not
even so much as an agreement authorizing him to keep said amount for himself,
nor was any such agreement pleaded, nor could it have been pleaded, for the very
reason that the defendant tried from the beginning to conceal his special
dealing with the employees of the railroad company, in regard to the sale in
question.

It is true that in the beginning of the negotiations no reciprocal,
consensual obligation was established between Monserrat and the defendant Lim;
but Monserrat having ratified the negotiations and mediatory acts of Lim in
respect to the sale of Monserrat’s land, from that express ratification pursuant
to article 1892 of the Civil Code, there arose an authorization, and the
obligation on Lim’s part to deliver to the vendor all the money received. This
obligation is mentioned in paragraph 5 of article 535 of the Penal Code,
aforecited, and originated from the quasi contract between the manager and the
owner of the business that was the subject of the intermediation.

As customarily occurs in crimes of estafa, the agent’s guilt supervenes from
an unlawful contract or act that assumes the nature of a crime because of the
craft or deceit which, on the occasion of such contract, its author performs in
fraud and prejudice of the other contracting party or of a third party, and for
this reason article 1092 of the Civil Code provides that civil obligations,
arising from crimes or misdemeanors, shall be governed by the provisions of the
Penal Code.

The defendant Lim, in the mediatory management he conducted for the
arrangement of the sale of Monserrat’s land to the railroad company, performed
or carried out acts that were perfectly lawful and accordant with law; but he
committed a punishable offense from the moment that he concealed and
appropriated to himself a part of the price of the land without accounting for
or delivering it to the owner of the property, since he had no right to keep the
P1,979.50 for himself.; it was his ineludible obligation—originated from his
officious management that produced the mandatory obligation—-to deliver said sum
to the owner of the land sold; and, because he appropriated this sum to himself
by means of deceit and to Monserrat’s prejudice, he is guilty of the crime of
estafa.

It is not at all strange that, with regard to certain crimes, there should be
cross-references between the civil and the penal statutes, because both these
branches form a part of the general laws in force in this country. Acts of a
civil nature are governed by the Civil Code, but from the very moment that a
human action assumes the nature of a crime, it of course comes within the
purview of the penal laws. If the defendant, in spite of his having concealed
from Monserrat the higher price he obtained from the railroad company, had
returned by the path of good faith, if he had reported the facts to the owner of
the land and had delivered to him the amount he received in excess, he would not
have committed any violation of law whatever and the prosecution instituted
against him would not have prospered.

In corroboration of what we have stated above in respect to the nature of the
crime under prosecution and to the liability contracted by its perpetrator, we
shall cite two decisions of the supreme court of Spain, rendered on appeals in
error, and in which will be found a discussion in regard to the application of
article 548, paragraph 5, of the penal code in force in that country and which
is the same as article 535, paragraph 5, of the penal code in force in these
Islands. In the first of these decisions, that of December 18, 1871, the
following legal doctrine is laid down:

“When a person constitutes himself a voluntary agent (gestor) for the
collection of a sum of money and, after collecting it, does not deliver it to
the persons by him recognized to be authorized and entitled to collect it, he
commits the crime of estafa, provided for in said paragraph 5, for he incurs
criminal liability by retaining in his possession the amount collected, and even
in a case where there be doubt, it is his ineludible duty to deposit such
collection with the court.”

In the other decision, rendered on April 7, 1904, the following principle is
enunciated:

“When a person engages himself to serve as an intermediary between a
manufacturer of a town and the merchants of a capital, taking it upon himself to
receive the goods, deliver them to the purchasers, collect the price thereof and
remit it to the manufacturer, charging for himself a 2 1/2 per cent commission,
if he appropriates to himself all or part of the sums collected, besides the 2
1/2 per cent commission, he commits the crime of estafa.”

In one of the findings on which this last-cited decision is grounded the
court says:

“The acts performed contain the characteristic elements of the crime of
estafa, which bears with it criminal liabilities born of the deceitful purpose
of misappropriation and diversion, and cannot be confused with the civil
liabilities which have their origin in the contract itself.”

The defendant Lim, in closing the contract of sale of the land with the owner
thereof, Monserrat, at a price fixed by himself and accepted by the latter,
implicitly obligated himself to collect from the purchaser company and to
deliver to Monserrat the whole sum he should receive as the price of the sale,
and from the very moment that he concealed, deceitfully and fraudulently, a part
of the price and appropriated it to himself, he committed the crime of estafa
provided for and punished in the aforecited article of the Penal Code.

The liability contracted by the defendant is so clear and evident that, after
a careful examination of his voluminous brief and the twenty errors assigned to
the judgment rendered by the Court of First Instance, and after duly weighing
the facts alleged and argued at the trial, as well as all the evidence therein
produced, irremissibly the conclusion is reached that the defendant, by means of
craft and deceit, did appropriate to himself and did defraud the complaining
witness Monserrat out of, the said sum of P1,979.50.

This court deems it unnecessary to spare the time that would be required
separately to refute each one of the twenty errors assigned to the judgment of
the lower court, for the reason that, by the statement of facts and the legal
considerations set forth herein and in our previous decision, those errors have
all been completely refuted, with the exception of the twelfth, which, though it
were true and though we should hold it to be a positive inaccuracy noted in the
judgment appealed from, that judgment would not, on that account, be null and
void and unjust, nor would the grounds set forth be weakened.

If this court, in the examination of a simple, uncomplicated fact, should, in
addition to the reasonings given in its decision, devote its time to a special
refutation of every one of the errors alleged, following the method selected by
the defense, we should fail; to obey the law of procedure, which prescribes that
decisions and judgments, without being excessively short and inexpressive, shall
contain a concrete statement of the facts pleaded and the evidence adduced in
their support, and of the legal grounds, conducive to a decision of the matter,
and that care shall be taken to avoid setting forth therein immaterial and
unnecessary allegations which, far from producing clearness in the issues
discussed, might give rise to involutions and confusions which might render it
difficult to arrive at a just and proper determination of the points at issue.
When, in the course of the pleadings, expression is given to contradictory
judgments and opinions, directly opposed to each other, it is quite natural that
each party should find error in the enunciation of ideas and the expression of
opinion of the contrary party. The court complies with the law by impartially
forming its judgment in the case or proceeding, and deciding the same in
accordance with the pleadings and proof.

For the foregoing reasons, and those set out in the previous decision, the
rehearing and the acquittal asked for in the preceding petition by the
defendant’s counsel is denied, and the findings of said previous decision of
this court, promulgated on March 31, last, shall be abided by. So
ordered.

Arellano, C. J., Torres, Araullo, and Malcolm, JJ.

---

CARSON, J., concurring:

The arguments of counsel in support of this motion
for a rehearing are substantially identical with those decided adversely to his
contentions in our original decision on this appeal, and nothing has been said
which would justify the setting aside of the former decision and the reopening
of the case. The motion for a rehearing should, therefore, be denied.

---

STREET, J., dissenting:

On March 25, 1911, the defendant, Mariano Lim, induced one Pablo Monserrat to
execute and deliver to him four deeds to as many pieces of property theretofore
owned by Monserrat and situated in the municipality of Nagcarlan, in the
Province of Laguna. The transaction was in the form of a sale and the price
agreed upon was P2,492, which was paid by the defendant Lim. The grantee named
in the deeds was not Lim, who negotiated the purchase and paid the price, but
the Manila Railroad Company. Within a short period after Lim acquired these
deeds he reached an agreement with the officials of the railroad company by
which they paid him the sum of P4,461.50 for the property.

The deeds were delivered to the company in March 30, 1911, and the price was
paid April 21, thereafter. The defendant now stands convicted of the offense of
estafa, under subsection 5 of article 535 of the Penal Code; in failing to
account to Monserrat for the difference between what was paid to the latter and
what was finally received by the defendant from the railroad company, to wit,
the sum of P1,979.50.

The information proceeds upon the idea that in this transaction Lim was
Monserrat’s broker, agent, and attorney; that he fraudulently misrepresented the
price which the railroad company was paying, or intended to pay, for the
property; and that he was bound by the obligation of law to pay over to
Monserrat the excess received. The defendant, on the other hand, asserts that in
this transaction with Monserrat he was in nowise the broker, agent, or attorney
of the latter; that he was on the contrary an independent purchaser upon his own
responsibility; and that he was therefore under no duty to account to Monserrat
for any part of the money received by him from the railroad company.

The four parcels of land in question were situated upon the right of way of a
projected line of railway located by the Manila Railway Company and known as the
Calamba-Santa Cruz line. The railroad company was, for this reason, confronted
with the necessity of acquiring said property either through purchase or
condemnation proceedings. By experience the officers of the company had found
that the acquisition of property through condemnation proceedings was costly;
and by experience they had also found that it was frequently difficult to deal
directly with the various owners. The land occupied by a projected right of way
would often consist of a great number of exceedingly small parcels with no other
title than that of possession and verbal agreements of partitions and in many
cases held in common by a number of persons between whom existed disputes.

The necessities and the difficulties of the railroad company in these matters
had given an opportunity to Lim, as a real estate speculator, to engage in the
business of acquiring these holdings in some way or other and selling them to
the company. His activities in this respect had been extensive, and the railroad
officials in charge of the matter of acquiring property for their right of way
seem to have been complaisant in their dealings with him, as they usually took
the property off his hands at figures which afforded him handsome profits.

In December of 1910, the defendant learned that Monserrat owned four parcels
required by the company, and he then attempted to buy the property, but was
informed by Monserrat that the latter hoped to sell the property directly to the
company. However, Monserrat was unable to come to terms with the company, and
Lim learning of this in the latter part of January, 1911, directed his agent in
Laguna to see Monserrat and ask him to come to Manila to see Lim, at the
latter’s expense. This message reached Monserrat duly, but no action was
immediately taken by him. A little later Lim casually learned at the office of
the railroad company that Monserrat was the only proprietor whose lands had not
been acquired and that the company in order to close up the matter would
probably pay for this property some P500 more than they had previously offered
to Monserrat. Upon this information Lim wrote a letter to Monserrat under date
of March 17, 1911, as follows:

“MR. PABLO MONSERRAT, Sta. Cruz, Laguna.

Esteemed Friend: I take the liberty to inform you that all the owners of the
lands expropriated by the Manila Railroad Company, from Calawang to Magdalena,
including Diego Pleto, have already been paid, with the sole exception of the
four parcels that are in your name.

“In consideration of the sales which I made to the company, of all the
parcels from Calamba to Magdalena, all of which sales were made by way of
compromise, that is, in a friendly manner, I have also gotten the company to
grant me an increase of P500 on the price of P1,609 that was the appraised value
of the four parcels of land with improvements which will be expropriated from
you; so that, with this increase, the amount that you will be able to collect
will be P2,109.

“The appraisal of P1,609 is in accordance with the decision of the court in
the case [concerning the lands] from Calamba to Bay, fixing the price at P700
per hectare of land, P10 for each bearing coconut tree and P5 for each tree not
yet in bearing.

“With the increase that I have now gotten, the price for the improvements
amounts to P15 for each bearing coconut tree, P10 (each) for those of the 2nd
class, P6 for those of the 3d, P5 those of the 4th, and more than P700 for each
hectare of land, as set forth in the statement of appraisal made here by
Attorney Ordoveza and myself, a copy of which was sent to you by this gentleman,
in a letter of the 16th of last February.

“The provincial treasurer has issued certified copies of the valuations of
those 4 parcels as they were declared by you and appraised by the Government,
and according to their assessment they appear to be worth, on an average, only
P100 per hectare, including the coconut trees and other
improvements.

‘The attorneys for -the company grant me said increase of P500 by way of
compromise, because it is the approximate amount which they calculate would be
spent in the lawsuit, including assessors’ and attorneys’ fees, and they have
notified me that if I do not answer before the 25th of this month of March, they
will file expropriation proceedings against you and will deposit in court only
the amount of the value declared by you and appraised by the Government, so that
they may occupy the land in accordance with the expropriation law.

“I myself believe, and I think that my colleague Ordoveza agrees with me,
that we ought to accept the P2,109 as a reasonable price for those four parcels
of yours; for, even if this case were brought to court, we would be liable to
obtain judgment fixing a price which might be but a trifle higher than that of
the assessed valuation, or, at most, a price equal to that assigned in the
decision in the expropriation cases [relative to the lands] from Calamaba to
Bay, in which event we would collect only P1,600, for we would not even have the
right to introduce in evidence at the trial of the case the [offer of the]
increase of P500 which it [now] tenders us by way of compromise, for the reason
that all references to a compromise are inadmissible in evidence.

“Hoping to receive your reply before the end of the period granted me by the
company, I greet you and remain,

“Your attentive, faithful servant and friend.”

This letter reached Monserrat in due time through Lim’s local agent, and when
read by Monserrat was returned with the remark that he would make no written
reply as he was going to Manila to see Lim personally. This circumstance is
mentioned for the purpose of indicating that Monserrat could not have obtained
more than a general impression from the letter. In our opinion the importance of
the letter considered in its effect upon Monserrat’s determination in the matter
of the sale of this property has been much exaggerated. We have no doubt that
many of the subtleties which the lawyers have discovered in this letter were
lost upon him.

On March 25, 1911, Monserrat came to Manila to see Lim, being induced to
come, so he says, “on account of this P500 that he (Lim) offered me over and
above the estimated value by the company on these parcels of land.” In the
interview that occurred on this occasion Monserrat held out for a higher price;
and after talking with somebody over the telephone Lim raised the offer by
something like P200 more, making P2,492 in all; and the bargain was closed at
that figure.

The principal question in this case is whether or not by intervening in the
transaction between Monserrat and the railroad company Lim constituted himself
the “broker, agent, or attorney” of Monserrat. It clearly appears that the
parties made no definite agreement creating either of these relations. All that
passed between the parties, so far as can now be known, is revealed in their
testimony; and it is plainly shown that no discussion took place about the
capacity in which Lim was acting. The prosecution, however, insists that Lim
became Monserrat’s broker as a result of certain fraudulent misrepresentations,
suggestions, and concealments whereby Monserrat was led to believe that Lim was
acting for him in the sale. Assuming for the sake of argument that the legal
relation of broker and client could be thus established for the purposes of this
prosecution let us proceed to examine the testimony in order to see if the case
is made out.

In this connection much stress has been placed by the prosecution upon the
contents of the letter of March 17, 1911. In this letter Lim states that he has
obtained a concession from the company in favor of Monserrat by which the
company would pay P500 more than it had previously offered; and he inferentially
states that Monserrat will get all of this payment to be made by the company, in
the event he should accept Lim’s offer. Again, in a paragraph near the end of
the letter, Lim makes a transition to the first person plural, by which he
appears to constitute himself a friendly monitor to Monserrat. Other things in
the letter are criticised by the prosecution as false or misleading, but we do
not find anything else in the letter of importance upon the question now under
consideration. Giving the letter its most unfavorable interpretation, it might
be claimed with some plausibility that it is an offer on the part of Lim to
assist Monserrat in the matter of disposing of his property to the railroad
company, and that Lim thereby in effect said: “Let me manage this business for
you.”

In our opinion this version of the letter in no wise represents the truth of
the transaction in question. To discover this it is only necessary to examine
the testimony. In his original examination Monserrat testifies that he did not
employ him as his attorney; and in three different places he states that he
understood that Lim was acting as an intermediary between himself and the
company. Nor were these observations inadvertently made; for the following
question was directly put:

“Q. In what capacity was Mr. Lim acting in this transaction?—A. I don’t know
in what capacity he was acting, but I believe he was acting as intermediary
between the company and myself.”

The term intermediary is not a technical term; and a person who acts as
intermediary may become legally liable to either the one or the other of the two
parties between whom he officiates, or to both, according to the nature of the
particular engagements or relations to them; but the deliberate use of this word
by Monserrat undoubtedly proves that he did not look upon Lim as his own
peculiar and special protector. Throughout the course of this transaction
Monserrat believed or suspected that Lim was acting for the railroad company and
that he would get his pay for his services in this transaction out of the
company.

In testifying in rebuttal Monserrat gave the following testimony:

“Q. Did you think that Mr. Lim would transfer to the company these four
parcels of land for the same price he paid you?—A. No sir, because I understood
that Mr. Lim acted as intermediary between the railroad company and myself, and
I thought that he received a commission for that work from the company.

“Q. So that you were aware of the fact that Mr Lim intervened in this matter
not to protect your own interests, but rather to protect the interests of the
company?—A. Yes sir, as a broker.

“Q. As a broker for the company?—A. Yes, sir.

“Q. And that is the reason he received a commission besides?—A. Yes,
sir.

This testimony shows clearly that Monserrat did not consider that Lim was
acting- for him, and that if Lim had used any wiles to induce Monserrat to
repose undue confidence in him, he failed in his purpose. As Monserrat believed
that Lim was the representative of the railroad company, he necessarily knew
that he was not his own. Our conclusion is that there was no relation of
principal and agent, or other confidential relation, created between the parties
and that they were dealing with each other at arm’s length. It may also be said
that if Lim was an expert in his way, Monserrat was not lacking in intelligence
or understanding; and the impression which we draw from the evidence is that if
Lim came out the gainer, it was rather because he was able to impose upon the
railroad company than on this individual Monserrat. One of the curious feature
of this complex case is that Monserrat was wrong in his belief that Lim was
acting as broker for the company. But this is immaterial. The question is: What
was Monserrat’s belief as to the relation of Lim to himself? While the fact that
he thought Lim was the company’s broker is conclusive that he did not accept him
as his own, the grounds on which that opinion was held are of no importance.

This testimony given by Monserrat takes out of the case the only factor upon
which in any aspect of the case the law could predicate an obligation on the
part of Lim to account to Monserrat for the specific money actually received
from the railroad company; and it is therefore a fatal impediment to the
conviction of the defendant under subsection 5 of article 535 of the Penal Code.
This factor being eliminated all that is really left is a simple case in which
it is alleged that Lim fraudulently secured from Monserrat four deeds to certain
pieces of real property.

But there is another problem in the case which has been a source of
perplexity and which seems to have been treated as if it were determinative of
the case on the question of agency, and in this respect it has apparently so far
exerted a controlling influence over the course of this litigation. The
character and bearing of this factor will now be discussed.

The information alleges that the transaction in question was a sale of the
property from Monserrat to the railroad company; and the case as
presented by the prosecution proceeds on the idea that Lim, after having
effected a sale from Monserrat to the company, unlawfully intercepted a
great part of the proceeds. The prosecution urges with great persistence that
there is no evidence of any sale from Monserrat to Lim at all; and that the only
sale proved is a sale from Monserrat to the company. This view of the case lays,
we think, undue stress on the fact that the deeds were drawn directly to the
railroad company. If the deeds were the only evidence on the subject, or if the
form of the deeds should be considered conclusive, this phase of the case might
prove serious. We believe, however, that nobody will question the right of a man
who negotiates a purchase and pays the price of real property to direct that the
deed shall be made out to some other person than himself, as is constantly done
among family relations and not infrequently in commercial transactions. And if
the vendor makes no objection no one else can fairly complain. Under the
circumstances surrounding the transaction in question it would have occurred to
anybody that by naming the railroad company as grantee the formality and expense
of another transfer would be saved; and the form of the deed must have been
wholly indifferent to Monserrat who knew that the company was going to get the
property any way. The only question discussed in the interview between Lim and
Monserrat was the price which the latter was to get, and from his point of view
that question was the only material thing.

The record, however, supplies another adequate explanation of the reason why
the deeds were drawn so as to name the company as grantee. That explanation is
this. These right of way transactions had been quite numerous, and the railroad
officials had for some time been impressing upon Lim the importance of keeping
his name out of the title papers. They knew they were paying him profits which
might in certain aspects be considered exorbitant, and they might have thought
that the less frequently his name appeared in the deeds the less danger there
would be of troublesome investigations, such as afterwards in fact supervened.
They accordingly told him that they would not accept deeds directly from him
except in rare cases. This naturally forced him into the course which, with the
approval of the railroad officials, he thereafter pretty consistently followed,
which was to take the deeds from the owners directly in the name of the company.
The testimony showing this practice we consider to be relevant and important. A
knowledge of the relations between Lim and the railroad company is of the utmost
value in arriving at a just conception of Lim’s relation to Monserrat and of the
character of this particular transaction. In the light of this explanation, we
believe that the mere form of the deeds is of little or no value upon the
question as to who was the actual purchaser.

Lim testifies that he himself was the purchaser and that Monserrat understood
very well that he (Lim) was buying the property himself with a view to reselling
it immediately to the company, and that naturally any price received over and
above what he was then paying would accrue to himself. Monserrat states that he
understood he was selling the property to the company, for in one place he
speaks of “the four parcels of land I have sold to the company,” and says again
that he “understood that it was to be for the company.” The testimony of
Monserrat on this point is, in our opinion, infected with the results of the
erroneous opinion into which he had fallen to the effect that Lim was the broker
of the railroad company; and it naturally seemed to him that in dealing with Lim
he was dealing with the company. We also believe that Monserrat’s testimony is
here colored in some degree by fresh knowledge of the fact that the deeds named
the railroad company as grantee, for whereas we find that while his opening
testimony on this point is somewhat ambiguous, the testimony given later, after
his memory had been refreshed by seeing the deeds, is more explicit and
uncompromising. It also appears that Monserrat had been advised by the
Government attorneys of the nature of the case against Lim; and that he expected
to recover in this action the excess which Lim received from the company, and
this on the theory that he had sold his land to the company and that Lim had
improperly withheld a part of the proceeds. There were certainly circumstances
in the transaction which should have admonished Monserrat that Lim wanted to
acquire the property or get control of it for money-making purposes; and in the
light of all the testimony it cannot be stated with any certainty that Monserrat
honestly believed he was selling directly to the company, in the sense that the
company was the actual puchaser in the transaction with him, though he did
believe, as is clearly shown, that Lim was an intermediary in some sense or a
broker for the company. Therefore if the case turned on the question as to who
was understood to be the purchaser of this property when Monserrat decided to
sell, and Lim was to be condemned or absolved by the answer to that question, we
would find that the case of.the prosecution is not made out. But supposing that
Monserrat fully believed that the company was the real purchaser from him and
that Lim was acting exclusively for the company throughout the transaction, it
is nevertheless established that such was not the fact. The title did not pass
to the company until the deeds were delivered to it, and the company was not the
immediate purchaser from Monserrat in any sense. If Monserrat had any such
erroneous belief, what would be its legal bearing on this case? The answer is
that this circumstance would merely indicate that Lim had falsely represented
himself as having a qualification or agency that he did not possess. If such a
misrepresentation were material and really operative, it would tend to make out
a case under the first subsection of article 535 of the Penal Code, and it would
not in any wise assist the case of the prosecution under the fifth subsection of
the same article. However, a fraud of this character is completely at variance
with the case stated in the information.

It should be noted that Monserrat wa”s not brought into contact with the
railroad officials at any time during this transaction. Hence the theory that
there was a sale effected directly from Monserrat to the company necessarily
presupposes that Lim was acting as agent for one or the other of the parties. If
it is supposed that a sale from Monserrat to the company was made on March 25,
Lim must be assumed to have been the agent of the company, but it is clearly
shown that he had no authority to act for it, and the company was not bound to
accept the deeds and take over the property. Furthermore, the assumption that
Lim was the agent for the company contradicts the whole case of the prosecution
which goes on the theory that Lim was the agent of Monserrat. If, on the other
hand, it is supposed that a sale from Monserrat to the company was effected when
Lim delivered the deeds to the company, it must be assumed that Lim was the
agent of Monserrat, a supposition which is consistent with the case of the
prosecution but which, as we have seen, is untenable in view of the proof. The
theory that there was a sale directly from Monserrat to the railroad company is
therefore shattered by contact with the proven or admitted facts.

Judging the transaction in all its bearings, the only conception of the case
which fits in with the facts is that Lim was an independent operator, as he
asserts, and not the agent of either of the other parties. During the period
which elapsed after his transaction with Monserrat until he turned the deeds
over to the company, Lim had in his possession the deeds which named the
railroad company as grantee. The possession of these instruments gave him
control over the property somewhat as if he had obtained an irrevocable power of
attorney to transfer the property to the company. It seems not to be necessary
to consider minutely the exact character of the civil rights which might have
arisen from that transaction or from the receipt which was signed by Monserrat.
Practically speaking, Monserrat knew that he was selling the property and
divesting himself of ownership.

In the preceding discussion we have assumed for the sake of argument that the
theory of the case presented by the prosecution as regards the liability of the
defendant under subsection 5 of article 535 of the Penal Code is technically
sound; that is, we have assumed that the relation of broker and client between
these parties might be established for the purposes of this prosecution by proof
showing that Lim fraudulently represented himself to be Monserrat’s broker. We
now propose to examine the grounds of this assumption in order to discover
whether the proposition in question is tenable.

The section of the Penal Code under which the defendant was condemned, so far
as applicable to the facts of this case, imposes a penalty on those who “to the
prejudice of another appropriate or withhold, money, effects, or other personal
property which they may have received upon deposit, commission, or for
administration, or in any other character (titulo) giving rise to the
obligation to deliver or return the same.” The supreme court of Spain, in
commenting upon- the preceding provision, has said:

“It is necessary that the sum supposed to have been appropriated or diverted
should have been delivered by virtue of a title that produces the obligation to
deliver or return the same thing. (Viada, Penal Code, 1 Suppl., p. 292.) Viada,
commenting on the same provision, observes:

“The third element of this crime consists in that the things mentioned
(money, goods or any other chattel) shall have been received as a deposit, on
commission or for administration, or under any other title from which arises the
obligation to deliver them or return them, that is, to deliver or return the
same thing received (not another of the same kind and quality) as
occurs in the case of the deposit, commission and administration of which this
article particularly treats, and also, for example, in the contract of
comodato where the borrower is obliged to make restitution of or return
the very same thing which he received for a specific use.” (Viada,
Codigo Penal, amended, vol. 3, p. 515.)

It will be observed that this article, of which subsection 5 is only a part,
makes provision for a great variety of offenses characterized by fraud or deceit
in some form or other, but subsection 5 is the only provision which presupposes
and requires the existence of a specific obligation to return or deliver the
very money, goods, or other personal property received. Primarily this
subsection is intended for the case of embezzlement by a bailee. Here the
obligation to return or deliver is born of the contract re. It has been held
that this provision does not apply to the case of a debtor who merely refuses to
pay a money debt, since the debt does not contemplate the return of the same
thing received. (U. S. vs. Ibañez, 19 Phil. Rep., 559; U. S.
vs. Camara, 28 Phil. Rep., 238; U. S. vs. Figueroa, 22 Phil.
Rep., 269.) It is also evident that this provision would not, in this
jurisdiction at least, cover the case of a person who refuses to return or
deliver personal property consummable in use which he may have obtained upon a
loan (mutuum).

From what is said above it is obvious that the obligation contemplated in
subsection 5 of article 535 of the Penal Code can originate only in consent and
must be derived from some known and nominate title (titulo) or category
of obligation, similar to those mentioned in that subsection (deposito,
comision, admimstracion). The salient feature of this obligation is that it
originates in the consent, express or implied, of the parties; and it is evident
that the word “obligation” is here used in the sense that it bears in the civil
law of contract. The passage cited from Viada rightly supposes that the
obligation here contemplated might originate in the commodate (comodato); and we
may add that there can be no doubt that such obligation may originate in
relations like that of principal and agent, as is assumed in this
prosecution.

It is, however, obvious that this obligation cannot originate in a simple act
of fraud. The various phases of fraud and deceit, considered as a subject of
penal regulation, are fully dealt with in other provisions of the Penal Code,
and especially in the eight other subsections of this article 535. It is
reserved to subsection 5 to deal with the subject of constructive fraud, that
is, with that form of fraud which consists solely in the violation of a
contractual obligation. Evidently the obligation or duty which the law imposes
upon wrongdoers in general to repair the damages resulting from crime or other
civil injury is not such an obligation as is contemplated here. The thief and
the robber cannot be held guilty of estafa under subsection 5 for
failure to return the property which may have been stolen or robbed by them. The
same applies in all cases of actual fraud. We believe that no passage can be
cited from Spanish jurisprudence which lends countenance to the idea that the
obligation contemplated in this subsection can originate in any other source
than the consent, express or implied, of the parties.

Another conclusion to which we arrive is that the obligation contemplated in
subsection 5 cannot originate in a relation imposed upon one of the parties by
what is known in English jurisprudence as the equitable estoppel. This
conclusion is supported by the general principle, already developed, that the
obligation can only originate in consent; but its validity is supported by other
considerations. The case of the Government proceeds, it will be remembered, upon
the idea that inasmuch as Lim represented to Monserrat that he would act for him
in selling the property to the railroad company, and inasmuch as Monserrat
proceeded in the transaction under this belief, Lim is thereby estopped to deny
that he was Monserrat’s broker. To support this idea that the relation of broker
may be here created by estoppel, section 333 of the Code of Civil Procedure is
cited. It may be observed that this provision is contained in a code of civil
procedure and not in a code of criminal procedure; and we do not think that this
provision is applicable in a criminal action at all. It is obvious that said
section 333 is a mere statement of a rule of civil jurisprudence which had been
developed by the courts of common law and which has never, in any jurisdiction,
been extended into the field of criminal law. There is a saying in the common
law, as old as the doctrine of estoppel itself, to the effect that the estoppel
is odious, the reason being that it stops a person from speaking the truth. The
doctrine of estoppel has its proper place in the solution of problems relating
to civil rights, but it cannot be applied in our opinion for the purpose of
artificially creating a relation on which to found a judgment against a man in a
criminal case.

In order that the true nature of the equitable estoppel may be better
understood we will say that it is an obligation which, in English jurisprudence,
might properly be classed as a quasi-contract. It may be defined as an
obligation imposed by law whereby a man who makes a particular statement or
representation by which he induces another to act in a certain way is
subsequently precluded from denying the truth of such statement or
representation in every case where the assertion of the contrary would in effect
lead to the consummation of a fraud. Something like this is stated as a rule of
evidence, under the form of a conclusive presumption, in section 333 of the Code
of Civil Procedure. It will be noted that the obligation is imposed by law,
regardless of the intention of the person who is estopped and really against his
will.

That the conception of obligation embodied in our American doctrine of
equitable estoppel is not recognized in the Spanish law is readily demonstrated,
for it is not defined in the Civil Code and it is in fact excluded by ,the
enumeration and definition therein of other recognized sources of contractual
obligation.

The twenty sixth article of Ley de Bases contains the following:

“The forms, requisites and conditions of each contract in particular shall be
developed and defined subject to the general schedule of obligations and their
effects, with due regard towards maintaining as a base the legislation ill force
and the developments added thereto by jurisprudence. * * *”

Article 1710 of the Civil Code recognizes that the mandate may be express or
tacit; but it is not to be understood that a tacit mandate can actually be
created against the consent of the parties. A tacit mandate is, we apprehend, a
mandate proved to the satisfaction of the court by acts and circumstances which
indicate the consent of the parties to the existence of that relation.

In treating of quasi-eontract, the Civil Code devotes a few articles to the
individual who officiously takes upon himself the management of another man’s
business (gestor oficioso). Supposing the theory of the prosecution to
be tenable, we should expect to find in this part of the Code some recognition
of the idea that a man may be held to the obligation of agent (gestor)
by estoppel. But a perusal of article 1888 will clearly show that the law here
contemplates the situation where the gestor voluntarily intervenes in the
business of another, fully recognizing that he is acting for that person.

In resolving the question which we have been discussing it should not be
forgotten that we are applying and interpreting a provision of the Spanish Penal
Code; and it should be interpreted in harmony with the legal system of which it
forms a part. To hold that the meaning of the word “obligation” in subsection 5
of article 535 has been modified and extended by the American doctrine of
equitable estoppel, and as a consequence merely of the rule stated in section
333 of the Code of Civil Procedure would, in our opinion, be highly inexpedient
and unreasonable; and not the least important of the evil consequences resulting
from this would be that no man could thereafter know with any certainty at what
point liability under this provision would begin or end.

Our conclusions on this branch of the case therefore are: (1) that the proof
fails to show that Lim was Monserrat’s broker, agent, or attorney, as alleged in
the information; (2) that the proof also fails to show any such fraudulent
representations, suggestions, and concealments as would be sufficient in a civil
case to create an equitable estoppel; and (3) that even if proved the equitable
estoppel would not suffice in this criminal case to make the defendant agent or
broker for Monserrat in the sense necessary to create an obligation to deliver
the proceeds received by Lim from the railroad company.

The next question for discussion is whether or not the defendant can be
condemned under subsection 7 of article 535 which impose a penalty upon “any
person who shall commit a fraud by inducing another, by means of deceit, to sign
any document.” In this connection it is necessary to ascertain whether the
information charges any such offense, and in what terms. An examination of the
information shows clearly that it is primarily founded upon the theory of the
case which has already been examined; but the information incidentally, and as a
part of its statement of the entire case, contains the charge that the defendant
Lim induced Monserrat to execute the deeds of sale in favor of the railroad
company for the sum of P2,492, upon the false representation that the said
company would not pay more, when in truth and in fact the company, as Lim well
knew, had offered P4,461.50 which could be and had been obtained for said four
parcels of land. The representation here alleged has not been proved, for the
proof shows clearly enough that when Lim obtained the deeds in question no offer
of the larger sum had been made by the railroad company. We are convinced that
when Lim obtained the deeds he did not know exactly what he was going to get out
of the railroad company, but knew that he was going to get a good profit and
intended to take all that the company coulcl be made to yield up.

In the same connection wherein the information makes the charge of the
misrepresentation just noted, it is also charged that the defendant made “other
similar representations,” but we do not discover in the proof evidence of any
material misrepresentation which could properly be considered to be included in
these words.

The conclusions already reached make unnecessary the consideration of
numerous features of the case which have been called to the attention of the
court. But before closing this opinion we wish to direct attention to a few
scattering points.

When the deeds were prepared for execution by Monserrat the consideration
which had been paid to Monserrat was not inserted; but later when the price
which the company was to pay to Lim had been agreed upon, the consideration
represented by this larger sum was then inserted in the blank spaces. That
certainly looks suspicious, but the circumstance is explained as follows: Lim in
the first place did not wish to produce to the company an instrument showing the
exact price he paid, and hence he omitted to write the consideration which he
had paid to the vendor into the deed. Qn the other hand, it would have been em-
barrassing for the railroad officials to file among their records a deed
executed to the company as grantee which should show a consideration different
from that paid by themselves. For this reason the amount paid by them was
inserted at the time of the delivery of the deeds to them. It is shown in
evidence that this practice was uniformly pursued by Lim with the knowledge of
the railroad company or its officials. It is therefore impossible to believe
that the leaving of the consideration unstated when Monserrat executed the deed
was a device of the defendant to defraud him.

Some effort had been made by the attorneys of both parties to draw inferences
from the language of the receipt which was executed by Monserrat when he
received the check from Mariano Lim. It appears that this receipt was written
upon a printed form such as Lim had been accustomed to use in cases of a
somewhat different character. We attach but little importance to this document
in its bearing on this case. Its recitals are not apposite to the transaction,
and Monserrat probably was not bound by any of its statements otherwise than in
so far as it expressed a receipt for a sum of money.

Many of the circumstances which have been used in this case as a basis of
criticism against Lim have their explanation in his peculiar relations to the
railroad officials. Throughout the whole transaction it is obvious that Lim was
merely following the well-worn trail leading to the exchequer of the railroad
company. But the railroad company has made no complaint and the machinations
directed against it are no part of this case, except in so far as they reveal
the real direction of the defendant’s designs.

There is no satisfactory proof in the record showing the actual value of the
property which was sold by Monserrat. It appears, however, that this property
had been assessed upon his sworn declaration at a valuation of P150. The fact
that it had become necessary for the railroad to acquire it for right of way
purposes of course increased the possibilities of the situation and made it more
valuable. However, the fact that Mariano Lim was able to obtain over P4,400 for
the same property does not prove that the latter figure, any more than the P150
for which it was previously assessed, represented its true value; and it is a
safe conjecture that this value lay nearer to the amount which Monserrat
received than to the amount which the railroad company paid out. However, the
human imagination is easily captivated and the circumstance that Lim got much
more than he paid out, has led to the assumption that Monserrat was defrauded of
the entire excess. But it is disclosed in the evidence that after March 25,
1911, when Monserrat executed the deeds, he treated the transaction of the sale
of the property as closed, and no complaint has ever been made by him that he
was defrauded by the defendant in that transaction.

Something is said in the opinion of Moreland, J., in this case about a
relation of confidence, or fiduciary relation, between Lim and Monserrat; but it
should be remembered that a man cannot put himself in a confidential relation
with another merely by perpetrating a fraud upon him. The term confidential
relation, as used in the law, has reference to certain definable legal relations
such as attorney and client, guardian and ward, agent and principal, etc., the
existence of which must be established as facts before the legal rules
applicable to those relations can have any application. There is no such thing
as a confidential relation in the abstract upon which legal consequences can be
predicated. In all cases where men are deceived and defrauded it will be found
that there has been a misplaced confidence; but the mere fact that a defrauded
person has reposed confidence in the deceiver does not create a fiduciary
relation.

A few words must be added as explanatory of this opinion. The writer, as the
record shows, did not partici- pate in the deliberations which resulted in the
original affirmance of the judgment of the court below; but being a member of
this court when the motion for a rehearing came up for consideration, he was
assigned by the court to examine the record and report thereon. After a careful
examination of the whole case the conclusion was reached that the defendant had
been improperly convicted. This view was not concurred in by the court; and as a
result this opinion, which had been reduced to writing before the prevailing
opinion was written, appears in the form of a dissent. This statement will serve
to explain the apparent lack of connection between this opinion and the opinion
of the court, as it will also serve to show that the writer has not unduly
obtruded himself into this matter for the purpose of disturbing the settled
resolves of the court.

Upon reading the opinion of the court upon this motion only one comment
occurs to us at this moment, which is this: There is one paragraph in the
opinion which brings out with entire clarity and precision the principal point
of difference between the conclusion adopted in that opinion and that which is
entertained by this writer. It is there said:

“If the record actually disclosed the slightest proof that the aggrieved
party, Monserrat, sold to the defendant, Lim, and not to the company, the said
four parcels of land, it would be a great injustice to decide this case by
convicting the defendant of having swindled the complainant out of the amount of
the difference between the price of the sale and that of the
resale.”

In the view of this writer, the record contains not only light but conclusive
proof that Monserrat sold, and knew he was selling, this property to Mariano Lim
when he signed the deeds which were executed upon March 25,1911; and in the
foregoing opinion we have stated the reasons for so believing. That the court
has reached a different conclusion merely shows in our opinion that too much
importance has been attached to the fact that the deeds named the railroad
company as the vendee. The theory of the case adopted by the court is that Lim
was a middleman acting as the secret agent of one party, the railroad company,
and as an officious intermeddler (oficioso gestor) in the affairs of
the other. We think that the simpler and more just conclusion is that the
defendant was an independent operator, playing between two extremes and turning
to his own account the necessities or desires of both parties. We very much
doubt if the sensitized conscience of an English Chancellor ever sanctioned a
decree upon a civil liability as doubtful as this; and we are clearly of the
opinion that the situation is not such as to justify a criminal conviction.