G.R. No. 18335. July 31, 1963
SALUD LEDESMA, PETITIONER VS. ALBERTO REALUBIN AND COURTS OF APPEALS, RESPONDENTS.
REYES, J.B.L., J.:
respondent, Alberto Realubin, the petitioner, Salud Ledesma, purchased on credit, on different dates, through her
drivers, gasoline and motor oil, from June to September,
1956, for amounts summed up by the month, as follows:
June……………………………………………………………………………………. July……………………………………………………………………………………… August…………………………………………………………………………………. September…………………………………………………………………………….
All the credit purchases were invoiced in the same printed form. The earliest,’ Exhibit “A”, is, in words and
figures, as follows:
“Tel. No. 21-38 Baguio CALTEX Service Station
Corner Naguilian, Bower & Bokawkan Road.
Baguio CityMr. & Mrs. A. REALUBIN—Prop.
Sold to Mrs. S. Ledesma Address License No. 1541 Articles Purchaser hereby agrees that a charge of 1% per month shall be
added to all overdue accounts; (accounts more than 30 days shall
be counted overdue) an additional 25% of the amount will also be
charged for attorney’s fees plus cost of collection; (in cases where
such services are required).It is agreed further that the courts
of Baguio will have exclusive jurisdiction over any litigation arising
from this transaction.
(SGD.) MANUEL BUENCONSEJO
Purchaser or Agent”—————————-
Salesman
The respondent follows this business practice: Each
invoice is done in triplicate—the original, in white paper;
the two others, in blue and pink paper, respectively. For
purchases in cash, the original or white invoice is issued
to the customer, but for purchases on credit, the pink copy
is issued, the station proprietor retaining the original and
blue copies; when payment is made on credit purchases,
the white or original copy is then released to the customer.
At the time of the trial, the plaintiff (respondent
herein) was in possession of the original or white copies of
the invoice for purchases made in the months hereinabove
stated (June to September), all of which were signed by
the petitioner’s truck drivers.
Due to repeated verbal demands upon to pay, the petitioner sent to Alberto Realubin the following handwritten
letter:
“Nov. 25, 1967
“Mr. Realubin,
My son told mo that you came to see me. To tell you the truth
Mr. Realubin, I am just waiting for the money of Miss Casisca
from the National Power Corporation, after she can finish the 24
houses she contracted after everything will be paid. I will be the one
to go to you, and not you to see me, because that is my obligation
to you. I am really very ashamed for all that happened to me
that I cannot even pay my obligation.I hope you understand what I mean. Just be patient Mr. Realubin. Very soon I will settle my account to you.
Sincerely,
(Sgd.) Mrs. Ledesma”
Salud Ledesma was, in the court below, first adjudged
in default, but on petition for relief, the default was set
aside. In her subsequent answer to the complaint, she
denied the purchases, and averred, as a special defense,
that her truck drivers did not have the authority to purchase
gasoline in her behalf. The drivers’ authority to sign,
however, was admitted during the trial, but Salud Ledesma
testified that the amounts which the plaintiff was collecting
from her had been fully paid. She tried to prove payment
by her sole testimony and by presenting as exhibits the
pink copies of the invoices she had in her possession. Salud Ledesma also contended that the handwritten letter,
previously transcribed, is a forgery. On this point, the
Court of Appeals made the following observation:
“The
handwriting of the letter is that a convent bred and educated woman;
the signature, Mrs. Ledesma, is in the same handwriting, and the
contents of the letter express the fine sentiments of a woman
apologizing for her failure to pay her obligation. Appellant’s two
samples of her signature affixed during the trial on Exhibit 12, and
her admitted signatures on Exhibits 13 and 14 seem to be the same hand
that wrote and signed the letter. As appellant’s testimony denying
having written and signed the letter was on material matter, we deem it
proper to order the holding of a preliminary investigation to determine
whether the crime of perjury or false testimony has probably been
committed.”
The trial court found for the plaintiff, and the Court of
Appeals sustained the decision with certain modifications.
The petitioner then took an ultimate appeal to this Court.
The
petitioner argues here that it was error for the Court of Appeals to
take against her the circumstance that her answer had only one special
defense, pointing out that evidence presented on her other defenses was
not objected to during the trial. We see no point in this assignment
since the Court of Appeals merely stated the truth, that in
petitioner’s answer she only alleged one special defense: “to wit, lack
of authority of her truck drivers to sign the purchase invoices on her
behalf. * * * ” The appellate court did not question the admissibility
of the evidence adduced in support of her other defense of payment,
though it was not alleged in her answer, but declined to give it
weight, as it had sound discretion to do. To admit evidence and not to
believe it are not incompatible with each other, and this Court can not
alter the conclusions of the Court of Appeals on the credibility to be
accorded to the evidence of the parties.
The second assignment of error refers to the failure of
the Court of Appeals to apply the presumption of payment.
Invoking Article 1176 of the Civil Code (New), petitioner
claims that inasmuch as she admittedly paid her October,
1956 purchase, it is to be presumed that her prior purchases were likewise paid, because her account with the
respondent was a running account. We cannot agree.
Realubin proved as a fact that the prior purchases were
not paid, and that the October purchases were for cash,
and the Court of Appeals so found. Therefore, the presumption of payment of prior obligations (assuming its
applicability for argument’s sake cannot prevail. Between a proven fact and a presumption pro tanto, the
former stands, and the latter falls.
The petitioner assails the appellate court’s decision to
increase the attorney’s fees beyond those awarded by the
trial court in spite of respondent’s interposing no appeal
thereon. This objection lacks merit, because the fees determined by the Court of First Instance could not have
included the service of counsel on appeal, none having been
theretofore interposed and the Court of Appeals could fix
counsel fees in accordance with justice and equity.
We agree with appellant, however, that the Appeals
Court erred in increasing the interest on the main indebtedness from the 6% awarded in the court of first instance
to 12%, because plaintiff’s failure to appeal from the decision signified his assent to the rate fixed by the trial
judge, despite the party’s knowledge that the documents
called for 12% interest.
Wherefore, with the sole modification that the main
award shall earn interest at the legal rate from July 18,
1959 until fully paid, the decision of the Court of Appeals
is affirmed. No costs in this instance.
Bengzon C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon, and Regala, JJ., concur.
[1] This amount, in the Court of Appeals decision, is stated as P439.85, obviously a clerical error.