BENITA QUIOGUE DE V. DEL ROSARIO, WITH HER HUSBAND, SALVADOR V. DEL ROSARIO, PETITIONER, VS. HONORABLE MIGUEL ROMUALDEZ, AS MAYOR OF THE CITY OF MANILA, RESPONDENT.

STREET, J.:

This is an original petition for a writ of mandamus, whereby the petitioner,
Benita Quiogue de V: del Rosario, with her husband, Salvador V. del Rosario,
seeks to compel the Honorable Miguel Romualdez, as Mayor of the City of Manila,
to accept a deed of conveyance executed by the petitioner, conveying to the City
of Manila certain lands with the buildings thereon at the price of P346,683.62;
to pay to the petitioner the sum of P173,341.80, as part payment for said
property, and to deliver to the petitioner obligations of the city for the
balance of the purchase price in three equal annual instalments, with interest
at the rate of nine per centum per annum,—all in conformity with the alleged
terms of a contract of sale between petitioner and the city. To this petition,
as amended, the respondent has demurred, and the cause is now before us for
resolution of the questions presented by the demurrer.

It is alleged in the complaint, among other things, that the petitioner is
the owner of five school buildings in the City of Manila, with the lots on which
the same are located, and that, at the time of the occurrences with which this
petition is conversant, the city was using said properties for school purposes
under a rental contract with the petitioner. It is further alleged that in the
latter part of the year 1923 the city authorities became desirous of purchasing
said five properties, and negotiations to this end were accordingly begun, with
the result that the petitioner agreed to sell, and the city agreed to buy, the
said five properties for their assessed value, namely, the sum of P346,683.62.
In order to carry this agreement into effect Ordinance No. 1169 was passed, and
on February 7, 1924, the same was approved, whereby the acquisition of the
properties at the price stated was authorized and sufficient money appropriated
to make the initial payment thereon in the amount of one-half the purchase
price, it having been agreed that the balance should be paid in deferred
instalments. The terms of this ordinance, after passing the first reading, were
duly accepted by the petitioner in a written communication addressed by her to
the Municipal Board.

The petition further alleges that, notwithstanding the perfecting of the
contract in the manner above stated, and notwithstanding the circumstance that
the city has ample means in its treasury available for the initial payment upon
the purchase, the respondent Mayor refuses to accept the deeds submitted by the
petitioner, conveying the properties to the city, and likewise refuses to pay to
the petitioner the amount due her upon said initial payment. This refusal on the
part of the Mayor is alleged to be based upon the pretexts that the city has no
money with which to meet the obligation and that the properties involved are not
fit for school purposes. We may add that since the original petition in this
case was filed the situation has become further complicated by the fact that the
Ordinance No. 1169 has been repealed by a later Ordinance No. 1196, approved
June 2, 1924; and the validity of the repealing ordinance has in consequence
been assailed by the petitioner in her amended complaint.

Upon the facts above stated we are of the opinion that the writ of mandamus
is not the appropriate, or even an admissible remedy. It is manifest that
whatever rights the petitioner may have, upon the facts stated, are derived from
her contract with the city; and no rule of law is better settled than that
mandamus never lies to enforce the performance of private contracts. (Florida
Central & Peninsular R. Co. vs. State ex rel Tavares, 20
L. R. A., 419.) The petitioner’s remedy, if any she has, is by an original
action in the Court of First Instance to compel the city to pay the agreed price
or to pay damages for the breach of contract.

In Montenegro-Riehm Music Co. vs. Board of Education of Louisville
(147 Ky., 720), the Supreme Court of Kentucky, discussing the writ of mandamus
under a statute not unlike our own, said:

“The Code provision confines the exercise of this remedy to cases in which an
executive or ministerial officer declines or omits to perform an act, the
performance or omission of which is enjoined by law. It is a special remedy,
although perhaps not an extraordinary one, provided for the purpose of
furnishing a speedy method of obtaining relief against an officer who fails or
refuses to perform some duty imposed upon him by law. It was not contemplated
that in cases of this character disputed issues of fact should be settled, but
that the rights of the parties should be determined by such issues of law as
might be presented by the pleadings, or an agreed state of facts, or a state of
facts about which there could be little dispute. As said in Lowe vs.
Phelps (14 Bush, 642):

” ‘It must, therefore, appear upon every application for a mandamus that it
is the legal duty of the respondent to do that which it is sought to compel him
to do, and that he has upon proper application refused to perform that duty
(Citing numerous authorities).

“It was not intended to aid a plaintiff in the enforcement of a mere contract
right, or to take the place of the other remedies provided by law for the
adjudication of disputed claims. Looking at the case from the standpoint of
appellant, it involves nothing more than an ordinary breach of contract. If, as
contended, the appellant had a valid contract with the school board, it also had
had an adequate remedy at law to recover damages for its breach; and to permit
the writ of mandamus to be used for the purpose of enforcing a mere contract
right would be a wide departure from the settled practice in respect to the
character of cases in which relief by mandamus may be obtained.”

In Parrott vs. City of Bridgeport (44 Conn., 180), the writ was
refused where the petitioner sought to compel a city to construct a public
street in a certain manner agreeably to the terms of a special agreement between
the petitioner and the city. In the course of the opinion the court said:

“* * * The duty, therefore, if any, which rests upon the city in this regard,
is one’which it owes to the petitioner as an individual, not to the public, and
the special contract is the foundation upon which it rests. But the writ of
mandamus has never been considered as an appropriate remedy for the enforcement
of contract rights of a private and personal nature and obligations which rest
wholly upon contract and which involve no questions of public trust or official
duty. Indeed, strictly speaking, it never lies where the party aggrieved has
adequate remedy at law, and its aid is only to be invoked to prevent an absolute
failure of justice in cases where ordinary legal processes furnish no relief. In
County Commissioners vs. Zanesville Turnpike Co. (16 Ohio State R.,
308), the relators prayed for a writ compelling the respondents to contribute
three-fourths of the expense of repairing a bridge, upon the ground that they
had contracted so to do. The court -denied the writ for the reason that it is
not its office to enforce obligations arising upon contracts. In State ex
rel. Bohannon vs. Howard County (39 Misso., 375), the relator
prayed for the writ to compel the respondents to pay him a portion of his bounty
as a volunteer. The petition was denied, the court saying that it would not
‘undertake by writ of mandamus to enforce simple common law rights between
individuals, such as payment of money, or where there is another adequate legal
remedy.’ * * *”

The authorities, almost without exception, support the doctrine stated in the
foregoing cases, as will be seen by reference to Chicago vs. Chicago
Telephone Co. (230 111., 157; 13 L. R. A. [N. S.], 1084); State ex rel. Burg
vs. Milwaukee Medical College (3 L. R. A. [N. S.], 1115) ; State ex
rel. Burg vs. Milwaukee Medical College (128 Wis., 7; 116 A. S. R., 21);
Booker vs. Grand Rapids Medical College (156 Mich., 95; 24 L. R. A. [N. S.],
447; 18 R. C. L., 129, 130).

It is true that there are cases in which the writ of mandamus has been used
to compel proper officers to sign or issue warrants, but it will be generally
found that in such cases the contracts had been completely performed on the part
of the petitioner, and nothing remained to be done except for the city to make
compensation. In the case before us the alleged contract has not been fully
performed on the part of the petitioner; and though she avers readiness to
perform, grave questions are raised by the respondent as to the validity of the
contract. From a perusal of the petition and consideration of the points
presented by the demurrer, it is evident that ground is laid out for a
complicated and hotly contested controversy over specific performance. The writ
of mandamus is not an appropriate proceeding in which to try matters of this
character; and the existence of the adequate remedy by original action in the
Court of First Instance must be considered fa£ai to the right of this court to
entertain the proceeding.

For the reasons stated, the demurrer will be sustained, and unless within
five days after notification hereof the petitioner shall so amend her petition
as to show a sufficient cause of action, an order absolute will be entered
dismissing the same, with costs. So ordered.

Malcolm, Avanceña, Villamor, and Ostrand, JJ.,
concur.
Johnson, Acting C. J., and Romualdez, J., took no
part in the decision of this case.