J. NORTHCOTT & CO., INC., PLAINTIFF AND APPELLEE, VS. MARIA VILLA-ABRILLE, DEFENDANT AND APPELLANT.

J. Northcott & Co., Inc., instituted
this action in the Court of First Instance of Manila for the purpose of
recovering a sum of money alleged to be due upon a promissory note
executed in favor of said company by the defendant, Maria
Villa-Abrille. At the hearing the trial court gave judgment in favor of
the plaintiff for the recovery of the sum of P807.66, the balance due
upon the note, with interest at 10 per cent per annum from January 15,
1918, until paid. From this judgment the defendant appealed.

The only point seriously insisted upon under the single error
assigned upon this appeal has reference to the defense of “former suit
pending.” The facts necessary to make this contention intelligible
appear to be these:

The defendant, Maria F. Villa-Abrille, is a resident of the
municipality of Davao, in the Province of Davao, Department of Mindanao
and Sulu, and in October of the year 1917 she there solicited from the
West Coast San Francisco Life Insurance Company a policy of insurance
upon her life in the sum of P15,000. At that time said insurance
company was represented in Davao by J. Northcott & Co., Inc., the
present plaintiff, who agreed to write the policy and received the sum
of P100 in cash in part satisfaction of the first premium. For the
balance the insured executed and delivered the promissory note now sued
upon, in the amount of P833.90, payable on January 15, 1918. When the
policy of insurance was later delivered, the defendant claimed that its
terms were not in accordance with the previous understanding of the
parties, in that is was only in the amount of P10,000, instead of
P15,000, and contained different stipulations and conditions from those
stated in her application. The company did not accede to this
contention, and as a result the insured presently instituted an action
in the Court of First Instance of Davao to compel the insurance company
to issue to her a policy of insurance in conformity with the alleged
agreement, or if this should be found impracticable, to rescind the
contract altogether. J. Northcott & Co., Inc., was joined in .said
action as a party defendant, in their character as general agent of the
insurance company.

In our opinion it is quite clear that the pendency of the prior
action brought by Maria F. Villa-Abrille tosecure the reformation of
the policy of insurance, or in the alternative, to obtain a decree
rescinding the same, is not a good defense to the action upon the
premium note. In the first place, it is obvious that if she obtains the
relief which she directly and immediately seeks, the contract of
insurance will remain in force, though with its provisions in a certain
manner changed. In this case the obligation to pay the premium note
would be in no wise affected, On the other hand, if she should fail in
the primary object of her action, and should obtain a decree declaring
the contract rescinded, the insurance company would indeed have to
restore the full amount paid to it by way of premium. (Art 1303, Civ.
Code.) But this result rests in contingency; and the mere possibility
that the former action may have such issue as to defeat the liability
of the maker of the note does not constitute a good ground for the plea
of former action pending. In order to constitute matter for plea in
abatement on this ground, it is necessary not only that the first
action may but that it must be determinative of the liability involved in the second.

It is to be admitted of course that if either the insurance company
or J. Northcott & Co. had filed a cross-complaint in the prior
action instituted in Davao, and had there asked for judgment on the
past-due premium note, the defense of former suit pending could be
sustained. But it does not appear that any such cross-complaint was
filed.

In Mutual Life Insurance Co. vs. Hargus (99 S. W., 580), a
situation was presented very similar to that now before us. There, the
general agent of an insurance company brought an action against the
person insured to recover on the note given for the first premium.
Later, the insured instituted an action to cancel the policy. It was
held that the pendency of the former action supplied no ground for
abating the second. Still more nearly in point, perhaps, is the
decision in Garza & Co. vs. Jesse French Piano
& Organ Co. (126 S. W., 906), where the purchaser of a piano
instituted an action against the seller to rescind the contract.
Subsequently the seller sued the purchaser to recover the purchase
price and to foreclose a mortgage given to secure payment. It was held
that the pendency of the first action could not be pleaded in abatement
to the second. In National Fire Insurance Co. vs. Hughes (189
N. Y., 84), an action was brought upon a fire policy to recover a loss
sustained by fire. Pending this action the company filed suit against
the person insured, plaintiff in the first action, for the purpose of
reforming the policy. It was held that the pendency of the first action
was no obstacle to the prosecution of the second. The ratio decidendi of this case is set forth in the syllabus as follows:

“While the actions are between the same parties,
the actions are not for the same thing. One is a legal action to
recover on a contract, and the other is an equitable action to reform
the contract itself. While the actions relate to the same
subject-matter, the purpose of the actions is entirely different, and
the relief demanded antagonistic and inconsistent; and hence there is
not another action pending between the same parties for the same cause
of action.”

These decisions all proceed upon the idea that before the pendency
of one action can operate to abate a second there must be substantial
identity not only as to parties but of causes of action and of issues.
One of the recognized tests of such identity is to discover whether a
judgment in the prior action would be conclusive as to the liability
sought to be enforced in the second and would operate as a bar to the
latter. In other words, if a final judgment in the prior action, be it
of whatsoever character it may, would support the plea of res judicata
in the second, the two suits may be considered identical; otherwise
not. This condition is not fulfilled in the case now before us.

In conclusion it may be observed that the defense of former action
pending does not go to the merits. Even when sustained, the result is
merely the dismissal of the action, and the defendant is not absolved
altogether from the demand. In other words the defense is more or less
of a dilatory nature and hence is not much favored by the courts. It is
therefore accepted doctrine that all of the conditions requisite to the
validity of the defense must be strictly fulfilled.

The judgment appealed from must be affirmed; and it is so ordered, with costs against the appellant.

Mapa, C. J., Aravllo, Malcolm, and Villamor, JJ., concur.