LORENZO ZAYCO, PLAINTIFF AND APPELLANT, VS. SALVADOR SERRA ET AL., DEFENDANTS AND APPELLEES.

It
appears from the evidence that on February 2, 1919, Salvador Serra,
Juan J. Vidauzarraga, Felix Vidauzarraga, Dionisio Vidauzarraga, and
Lazaro Mota, as parties of the first part, and Severo Alejano, the
Estate of Hilario Cordova, Lorenzo Zayco, the Estate of Tomasa Gemora,
Rogaciano Albayda, and Josefa Pacheco, as parties of the second part,
entered into a contract in writing whereby the parties of the first
part, referred to in the contract as the “Palma and San Isidro
Centrals,” in consideration of the covenants and agreements of the
parties of the second part, referred to in the contract as the
“Planters,” obligated themselves under paragraphs 1 and 2 of the
contract as follows:

“PARAGRAPH 1. That on
or before the 1st of November, 1919, the Palma Central will construct a
mill of a capacity of not less than 500 tons of cane, each twenty-four
hours, composed of two mills of three rollers each, and a crushing mill
of two rollers.

“PAR. 2. That they will construct, maintain, and operate during the term of the contract,
free of charge to the Planters, a railroad, propelled by motor or
steam, or by both, for the use of the Planters, for the transportation
of sugar cane, sugar and fertilizers, which they shall endeavor to run
through the cane fields of the Planters or as near them as the position
of the lands and plantations shall permit and the amount of cane to be
transported shall require, etc.”

Under the heading of “Obligations of the Planters,” the contract further provides that:

“In
consideration of the agreement and covenants with the Palma and San
Isidro Centrals, hereinabove mentioned, and of the sum of one peso (P1)
paid to each one of the Planters by the Palma and San Isidro Centrals,
receipt of which sum is hereby acknowledged, the Planters, individually
and separately, for themselves, their heirs, executors, administrators,
and assigns, do hereby covenant, stipulate and agree:

“1.
That each one of them will deliver to the said Palma and San Isidro
Centrals, for a period of twenty (20) years, beginning from the date on
which they are notified by the master of transportation that they are
ready to commence the milling of all the sugar cane, planted by them on
their lands, situated in the municipality of Kabankalan, Province of
Occidental Negros, P. I., which lands of the parties of the second part
are situated in said municipality and are generally designated and
described as follows:

“1. Haciendas ‘Nandong,’ ‘Pansod,’ ‘Lupni,’ ‘Ayucutan,’ Lorenzo Zayco, owner.

“2. Hacienda ‘Gilabangan,’ Josefa Pacheco, owner.

“3. Hacienda ‘Balas-Balas,’ Rogaciano Albayda, owner.

“4. Rogaciano Albayda, as judicial administrator of the Estate of Doña Tomasa Gemora, Hacienda, ‘Gilabangan.’

“5. Gregorio Cordova on behalf of the Estate of Hilario Cordova, lands ‘Hilamonan‘ and ‘Nandong.’

“6. Gregorio Cordova on behalf of the Hacienda ‘Lapnis’ of Severo Alejano.

“3.
That for a reasonable compensation, they will give and cede upon demand
by the Palma and San Isidro Centrals, for a period of thirty (30)
years, beginning from the completion of the construction of the
railroad line, the necessary right of way for the construction of a
telephone system for the Palma and San Isidro Centrals, and in like
manner, upon demand, they will also give the necessary right of way for
the railroad line for a period of thirty (30) years * * *.

“9.
That they shall appoint a committee or agents among those forming the
parties of the second part, which committee or agents shall inspect the
extension of the sugar plantings, in order to see to it that no less
than 2/3 of the area of the lands owned by them are planted and
harvested, unless prevented by force majeure, after the first
year of this contract, and they shall be cultivated subject to the
inspection of said committee or agents, and in all matters affecting
those of the parties of the second part, said committee or agents shall
represent them in their relations with the parties of the first part,
and shall also represent them in all other matters hereinabove
specified in the obligations of the Palma and San Isidro Centrals.

“10.
That they will submit any and all differences which might arise between
the parties of the first part and the parties of the second part to the
decision of referees, two of whom shall be selected by the first part
and two by the second part, who, in case of disagreement, shall select
a fifth referee, and they shall respect and abide by the decision of
said referees or of three of them, as the case may be.

“14. This agreement as well as all the provisions, covenants and
stipulations shall constitute a lien on said lands, and shall be
binding upon the planter’s heirs, administrators, assigns and grantees.”

The mill referred to in paragraph 1 of the contract was not constructed
and the railroad line mentioned in paragraph 2 did not reach the
“Nandong” and “Pansod” plantations, belonging to Lorenzo Zayco, until
March, 1920, over a year after the contract was entered into, and Zayco
therefore brought the present action against all the parties of the
first part of the contract, alleging that said parties had not complied
with the terms of the contract and that he, by reason thereof, had
suffered damages upon various counts in the total amount of P1,016,000,
for which he asks judgment against the defendants. He further prays
that the contract in question be declared rescinded.

The
defendants Juan Vidauzarraga and Dionisio Vidauzarraga did not answer
the complaint and judgment was rendered against them by default. The
defendants Anastasia Echevarria and Felix Vidauzarraga answered by
general denial. The defendant Salvador Serra sets up as special
defenses that he did not enter into the contract with the plaintiff
individually, but that the contract was between all of the defendants
on one side and the plaintiff and many others on the other side, and
that there, therefore, was a defect in the parties plaintiff in the
case; that the parties of the second part in said contract had violated
their agreement by not appointing the committee referred to in
paragraph 9 of the contract and by failing to plant a sufficient
quantity of sugar cane; that ample facilities were at all events
furnished the plaintiff Zayco for milling his cane, and that he
therefore had suffered no damages.

After trial, the court
below rendered judgment dismissing the complaint with the costs against
the plaintiff. The plaintiff appeals to this court and makes the
following assignments of error:

“1. The court a quo
erred in holding that Exhibit A, the basis of the action brought by the
herein plaintiff in this case, is without value as it never existed.

“2. The court a quo erred in holding that there is no evidence in the present case constituting estoppel as against the defendants.

“3. The court a quo
erred in holding that the defendant Salvador Serra was not bound to
construct the mill mentioned in Exhibit A capable of crushing 500 tons
of sugar cane during each twenty-four hours, for the reason that the
planters did not perform their part of the contract since some of them
failed to plant the quantity of sugar cane agreed upon.

“4. The court a quo
erred in holding that the defendant was justified in not constructing
the railroad connecting the Palma and San Isidro Centrals with the
haciendas belonging to the plaintiff.

“5. The court a quo erred in relieving the defendant Salvador Serra from the obligation of paying damages to the plaintiff from January 29, 1920.

“6. The court a quo erred in holding that plaintiff’s claim for damages was not sufficiently established by the evidence.”

The first and second assignments of error have reference to the
contention of the defendant Serra that the contract in question was
null and void because the persons who signed it on behalf of the
estates of Tomasa Gemora and Hilario Cordova were not duly authorized
to represent said estates.

There is some merit in these
assignments. It appears that Rogaciano Albayda who represented the
Gemora estate was its judicial administrator and Gregorio Cordova who
signed the contract on behalf of the Cordova estate was the de facto
administrator of that estate. Assuming that these persons exceeded
their authority, the contract would nevertheless not be an absolute
nullity, but simply voidable at the instance of the parties who had
been improperly represented. It follows that under the circumstances of
this case, the defendant Serra is hardly in position to assert that the
entire contract here in question was null and void ab initio.

The third and fourth assignments of error are not well taken. The
defendant’s contract was not with the plaintiff individually and alone;
it was with all of the individuals designated as “the Planters” in a
body and consequently a breach of the contract by any one of these
individuals would in effect constitute a breach of it by all. The
evidence is conclusive that none of the parties who signed the contract
as planters lived up to their agreement. By paragraph 9 of the portion
of the contract which relates to the obligation of the planters, the
latter bound themselves to appoint a committee or agents to supervise
the planting of cane and to settle disputes. The functions of the
committee were of importance to the orderly fulfillment of the milling
contract, but there is no pretense that such a committee was formed or
that agents were appointed.

The same paragraph also placed
upon the planters the obligation, after the first year of the contract,
to plant not less than 2/3 of the area of their plantations to sugar
cane. The plaintiff planted less than half of his land and the other
planters made practically no new plantings. As the proposed increase in
cane production must have been the principal inducement for the
defendants’ undertaking to construct an additional mill, and
undoubtedly also one of the reasons for their promise to construct a
railroad and operate it during the term of the contract, it would be
more than unfair to the defendants to require them to proceed with the
construction of the mill in the, face of the failure of the planters to
make provisions for an adequate supply of cane. When in addition to
this it is considered that the weight of the evidence shows that the
existing milling facilities were more than sufficient for the grinding
of the cane produced by the planters, we are clearly of the opinion
than the trial court did not err in holding that through the fault of
the planters, the defendants were justified in delaying the
construction of the mill.

As to the construction of the
railroad, the evidence shows that the defendants exercised due
diligence and that the delay in its completion was due to circumstances
beyond their control.

The fifth and sixth assignments of
error relate to the plaintiff’s claim for damages. In view of what has
already been said, it is unnecessary to discuss this question. We may
say however that we agree with the trial court that the plaintiff’s
claim is not sufficiently supported by the evidence.

The judgment appealed from is affirmed with the costs against the appellant. So ordered.

Avanceña, C. J., Street, Malcolm, Johns, and Villa-Real, JJ., concur.