INTESTATE ESTATE OF CLEMENTE DEL CASTILLO, REPRESENTED BY THE ADMINISTRATRIX LUISA A. VDA. DE DEL CASTILLO, PLAINTIFF AND APPELLANT, VS. RAFAEL P. GUERRERO, DEFENDANT AND APPELL…

Plaintiff seeks to recover damages for alleged breach of contract.
Defendant denied having violated the same and set up a counterclaim for
damages allegedly sustained by reason of the institution of this case.
In due course, the Court of First Instance of Negros Occidental,
presided over by Honorable Jose S. de la Cruz, Judge, dismissed
plaintiff’s complaint as amended, as well as defendant’s counterclaim,
with costs against the plaintiff. Both parties have appealed.

It is not disputed that on May 10, 1946, the Intestate Estate of
Clemente del Castillo, deceased, acting thru one of his heirs, namely,
Atty. Sergio del Castillo, and defendant Rafael P. Guerrero entered
into a contract whereby the latter, who is another member of the bar,
as well as a duly licensed surveyor, bound himself to subdivide and
make a parcellary survey of “Lots Nos. 2171, 2172, 2176, 2177, 2178,
2182 and 2283 of Bago Cadastre, Occidental Negros”, belonging to said
Estate, in consideration of the aggregate sum of P800.00, to be paid by
the same as follows: P270.00, upon the signing of the contract;
P270.00, upon completion of the survey work; and P260.00, upon approval
of the corresponding plans by the Bureau of Lands.

The
subdivision surveys of the aforementioned lots, except Lot No. 2283,
were made on June 20 and 25, 1946, and the subdivision plan was
approved on April 24, 1947. On defendant’s motion, dated December 2,
1950, filed in the proceedings for the, settlement of said Intestate
Estate, the Court of First Instance of Negros Occidental ordered the
then administratrix of the estate, on February 7, 1951, to pay
defendant herein P380.00, as the balance due him under the contract
above referred to. This order was complied with on April 30, 1951.
About three (3) years later, or on February 12, 1954, the Intestate
Estate of Clemente del Castillo, deceased, represented by his
aforementioned heir, Atty. Sergio del Castillo, brought this action for
damages—aggregating P1,610.90, which, by amendments to the original
complaint, was, subsequently, increased to P2,910.90—upon the ground
that defendant had failed to subdivide Lot No. “2983” of the Bago
Cadastre, which was allegedly what the parties had in mind, in lieu of
Lot No. “2283”, erroneously mentioned in the contract already adverted
to, as well as to make the parcellary survey agreed upon. However, this
pretense was not sustained by the lower court. Hence, in its brief,
plaintiff alleges that:

“1. The trial court
erred in holding that the parties did not intend to include Lot No.
2983, instead of Lot No. 2283, in their contract of subdivision.

“2. The trial court erred in holding that inasmuch as Lot No. 2983
appears as a road in the cadastral plan of the Bureau of Lands, it is
therefore, presumed to be a public road.

“3. The trial
court erred in giving much weight to the argument of the defendant that
inasmuch as plaintiff has failed to complain till eight (8) years
later, plaintiff is, therefore, guilty of laches.

“4.
Granting, arguendo, that Lot No. 2283 is the one intended by the
parties to be subdivided, the trial court erred in holding that the
defendant, by parol evidence, or the heirs, who are not parties
thereto, can vary the terms of a written agreement.

“5.
Granting, arguendo, that Lot No. 2283 is the one intended by the
parties, to be subdivided, the trial court erred in holding that the
admitted failure of the defendant to subdivide said lot and to provide
each heir with a parcellary plan of their individual portion do not
constitute a breach of contract on the part of the defendant so as to
entitle plaintiff to recover damages or to demand reimbursement for the
price of the one, out of the eight lots, not subdivided as weir as the
price of the parcellary plans made by other surveyors.”

The first assignment of error involves a question of fact, the right to
raise which is deemed to have been waived by the plaintiff,, for it
filed? with the lower court, notice of its “desire to appeal * * * to
the Supreme Court”, and submitted, together with the defendant, a joint
record on appeal, with a prayer that the same be approved and
“transmitted to the Supreme Court”, and it, not only, failed to object
to the order of the lower court approving said joint record on appeal
and directing that “the case be elevated to the Supreme Court”, but,
also, submitted therein its brief, thereby indicating clearly its
intent to submit to the appellate jurisdiction of this Court to review
decisions of courts of first instance, which, in cases like the one at
bar, is limited to purely questions of law.

Considering that
the property mentioned in the contract is Lot No. “2283”, not Lot No.
“2983”, which the lower court found not to be covered by said contract,
and that plaintiff is now barred from assailing this conclusion of
fact, the second assignment of error, in which the status of said Lot
No. “2983” is sought to be put in issue, need not be passed upon.

Under the third and fourth assignments of error, plaintiff maintains
that defendant is guilty of breach of contract he having failed to
subdivide Lot No. 2283. In this connection, there is evidence to the
effect that the same was not subdivided at the behest of some of the
heirs of the deceased, although the aforementioned Atty. Del Castillo
did not consent thereto. We are inclined to agree with His Honor, the
trial Judge, that the successors of the deceased were agreeable to said
arrangement for—with the exception of said counsel—they have shown no
interest in the case at bar. Indeed, neither the heirs of the deceased
(including Atty. Del Castillo), nor the administratrix of his estate
opposed defendant’s motion of December 2, 1950, for payment of the
balance allegedly due him under the aforementioned contract of services
and no appeal has been taken from the order granting said motion, which
order was soon complied with by said administratrix. Unless and until
annulled, and in the absence of fraud in securing said order—and there
is neither proof nor allegation to such effect—the same should be
considered as determinative of the rights arising from the contract
already mentioned, binding upon the parties thereto, and, hence, upon
plaintiff herein.

For the same reason, we find no merit in
plaintiff’s last assignment of error, in which it maintains that
defendant’s failure to make a parcellary survey of the lots described
in the contract in question constitutes a violation thereof. Besides,
as correctly stated by the lower court:

“This
brings the Court to the second question, namely, whether the defendant
violated his contract of services in failing to make a parcellary
survey of the subdivided lots. The defendant contends that, at or about
the time of the subdivision survey, the fields had not been planted to
sugar cane, or other crops, and it was therefore impossible to prepare
any parcellary plan. By the very admission of Atty. Castillo during his
testimony, it appears that he planted sugar cane only in 1947, almost
one year after the completion of subdivision survey. The defendant
presented as a witness Private Land Surveyor Cristino Ceballos who
testified that he made the parcellary survey of the lots composing
haciendas Florida, Emma and Trincavil in November, 1949 for the Ma-ao
Sugar Central to which the lots involved in defendant’s contract of
services were adhered; that the fields were then already planted to
sugar; that a parcellary survey cannot be accomplished when sugar canes
or other crops are not actually planted; that even if the defendant had
made the parcellary plans of the lots, the Ma-ao Sugar Central would
not take them, into account because the defendant was not under the
control and supervision of said Central which paid one half of the cost
of the parcellary survey. There is evidence to the effect that the
defendant had informed the plaintiff of his inability to make any
parcellary survey due to the absence, of sugar fields, and that after
said fields were formed, the defendant was not notified thereof.

“It
is urged on behalf of the plaintiff, through the testimony of Private
Land Surveyor Vicente Tibudan, that a parcellary survey may be made
even without field formation, just to indicate areas. The point brought
out in the testimony of Surveyor Tibudan is not inconsistent with the
theory of Surveyor Ceballos that there should be actual plantings of
sugar or other crops in order to make a parcellary survey in its common
acceptation, and the admission of Surveyor Tibudan that areas may be
determined and parcelled regardless of actual field formations does not
imply actual survey. It suggests rather the mechanical drawing of
fields and plans by imagination which may be made by a draftsman in his
office. Surveyor Tibudan himself admitted that in ordinary sense a
parcellary plan cannot be made in the absence of standing crops; and
there is absolutely no intimation that the contract of services
intended to depart from the common technical meaning of ‘parcellary
survey.’

“It is very improbable that, considering that a
parcellary survey is the easiest and cheapest, as testified to by
Surveyor Ceballos, the defendant would have unjustifiably failed to
make the same. With similar force, the unfavorable inference drawn from
the long delay on the part of the plaintiff to complain of defendant’s
alleged failure to subdivide lot No. 2983, and from the lack of
interest of the other heirs in the prosecution of this case, is
applicable to the matter of parcellary survey.

“It is no
less significant that in the original complaint filed by the plaintiff,
and signed by Attorney Castillo as counsel, the damages claimed against
the defendant were in the aggregate amount of less than P2,000.00 (as a
matter of fact only P1,610.00); and it was not after defendant’s
special appearance impugning the jurisdiction of this Court that an
amended complaint was filed increasing said damages to more than
P2,000.00 (as a matter of fact P2,910.90). This obvious uncertainty
detracts somewhat from the merit of the suit in general.”

Referring now to defendant’s appeal contesting the dismissal of his
counterclaim, we are fully in accord with the following observations
made in the decision appealed from:

“* * *
defendant’s overwhelming evidence proves that he has an excellent
reputation in the community, and while the defendant may allege or
suspect otherwise, the Court is convinced more than ever that his high
standing and good record remain unhurt. This is a mere civil action,
and there is absolutely no pretense that it had been given any
publicity, much less at the instance of the plaintiff or its counsel.
The defendant is a veteran lawyer and the Court assumes his complete
familiarity with various implications of a judicial proceeding, such
that it is hard to believe that he could have been really affected by
this suit. It is unlikely that the law would arbitrarily intend to
penalize by way of enormous damages those who elect to submit in good
faith their grievances to the Court for adjudication. Need it be said
that the Court (not the plaintiff) finally decides whether a given case
will prosper? More than what pecuniary values can mean, defendant’s
absolution from the complaint should give him a better reward and
bolster up his professional prominence.”

Moreover, under Article 2216 of the Civil Code, courts are vested with
discretion in the assessment of moral, nominal, temperate, liquidated
or exemplary damages, and we are satisfied, from the record before us,
that the lower court had made a judicious use of such discretion.

Wherefore, the decision appealed from is hereby affirmed, with costs against plaintiff-appellant. It is so ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.