RAFAEL MORETA, ADMINISTRATOR OF INTESTATE ESTATE OF THE DECEASED M. SINGH, PLAINTIFF AND APPELLEE, VS. TAN CHAY, DEFENDANT AND APPELLANT.

This action was originally instituted in the Court of First Instance of
Manila by M. Singh, who, being now dead, has been substituted by Rafael Moreta
as administrator of his estate. The purpose of the action as originally framed
was to recover from the defendant, Tan Chay, the sum of P25,000 as damages for
breach of contract, upon a first cause of action, and the further sum of P50,000
for breach of contract, upon a second cause of action. Upon trial in the Court
of First Instance the plaintiif was awarded both the sums mentioned, but the
defendant appealed, and in this court the judgment was reversed and the
defendant absolved from the complaint upon the first cause of action, and as to
the second cause of action the judgment was set aside and the cause remanded for
a new trial. (Singh vs. Tan Chay, 51 Phil., 259.) Upon the return of the record
to the lower court, the plaintiff amended his complaint and, instead of asking
for P50,000 as in the original complaint, claimed the sum of P65,000 as damages
upon said cause of action. The defendant answered with a general denial, various
special defenses, and cross-complaint. Upon the issues thus joined the case was
tried, and judgment was entered in favor of the plaintiff to recover of the
defendant the sum of P54,142, with costs. From this judgment the defendant
appealed.

The purpose of the action, as will appear from the statement of facts
relative to the second cause of action in Singh vs. Tan Chay (51 Phil., 259), is
to recover a commission upon the sate of three parcels of land described in the
contract Exhibit B, dated November 16, 1925. It appears that the original
plaintiff, M. Singh, was acting as a broker for the purpose of bringing about
the purchase of certain coconut lands by the defendant, Tan Chay, from one
Bernardo Marquez; and Tan Chay obligated himself to pay for said properties at
the rate of P4.50 for each coconut tree thereon. Singh thereupon procured a
contract with Marquez to pay the latter a price estimated at P3.50 for each
coconut tree. It results that, if the transaction had been effected through the
mediation of Singh, he would have had a net profit of one peso for each coconut
tree on the lands. But Tan Chay, as we observed in our opinion in the case
already referred to, found that he could buy the properties from Marquez
himself, and he yielded to the temptation to buy from Marquez without the
intervention of Singh. This transaction with Marquez was accomplished by the
contract Exhibit I. Undoubtedly that purchase by Tan Chay was made from Marquez
for the purpose of saving the commission ; and the present action was brought
for the purpose of recovering Singh’s commission, estimated at one peso for each
coconut tree on the lands.

But it turned out that Marquez, though he had at one time been the owner of
the properties referred to, had some five years before the transaction with
which we are here concerned ceased to be owner, as a consequence of mortgage
foreclosure proceedings and the levy of an execution against him upon said
properties, the same having been sold under execution without redemption. It was
found by the trial court that Singh, as broker, had acted in good faith, being
unaware of the fact that Marquez had no title, though the deed from Marquez to
Tan Chay stated that the property was encumbered and that the money to be paid
by Tan Chay could be used to settle any outstanding claims against Marquez.
Furthermore, it appears that some time after Tan Chay had purchased from
Marquez, and after this claim had been made upon him for Singh’s commission, Tan
Chay obtained from Marquez a cancellation of the deed by which the latter had
conveyed the property to Tan Chay. It resulted also that in order to perfect his
title Tan Chay had to pay out the amount of P151,466.42 to acquire the rights of
the encumbrancers and owners other than Marquez, in addition to what he may have
paid Marquez for his supposed interest in the property, which latter amount is
stated in appellant’s motion for a new trial to have been the sum of P16,800. In
this way Tan Chay apparently paid about P170,000 to obtain a good title to
properties for which he had originally agreed to pay some P225,000, assuming
that there were, as was then supposed, 50,000 coconut trees on the lands. Upon
the facts above briefly stated, two defenses are planted, namely, first, that
Singh is entitled to no commission because of lack of title in Marquez, the
would-be seller; and, secondly, that the properties did not contain anything
like the number of trees represented to be thereon.

Upon the first point, we are of the opinion that lack of title in the vendor
is no good defense to the claim of the broker for his commission upon the sale,
he having acted in good faith, and the purchaser having accepted the seller and
entered into an independent contract with him. When,Tan Chay purchased from the
presumed owner of land, the latter was bound to warrant the title, and the
remedy of the purchaser, if title failed, was against the seller. (Roche vs.
Smith, 176 Mass., 595; 79 Am. St. Rep., 345; Carrington vs. Smithers, 26 Cal.
A., 460; 147 Pac, 225.) Nor is the application of the rule in this case affected
by the circumstance that the deed from Marquez to Tan Chay was canceled; for if
Tan Chay saw fit to surrender his rights against Marquez by the cancellation of
the purchase, this step did not operate to the prejudice of the rights of the
broker.

Upon the other branch of the case, namely, as to the amount of the commission
to which Singh was entitled, estimated at one peso per coconut tree on the
properties, the proof shows that at the time of the sale there were 33,085
coconut trees on part of the lands. Proof to this effect is based upon oral
testimony, and the record does not supply any demonstration that the conclusion
of the trial court with respect to the number of those trees was erroneous.

With respect to the number of trees on another lot, referred to in the proof
as lot 4, we are of the opinion that error is shown. It appears that the trees
on this lot were planted by Castro Felismeno and others assisting him under a
contract with a prior owner of the property, and litigation resulted between
Felismeno and the prior owner in an action to which Tan Chay ultimately became a
party. In that action the court ordered the provincial sheriff of Tayabas to
count the trees on lot 4, and this count was made in October, 1926, or shortly
after Tan Chay obtained actual possession from the former owner, or owners. It
was found by the sheriff, and report made to the court, that there were then
8,079 trees on the place. For the planting of this number of trees Felismeno was
accordingly in that case paid the sum of P8,079 by Tan Chay. In the present case
Felismeno testified, as he had testified in the other case, that he planted some
21,000 trees on this property. We are of the opinion that his testimony and that
of his assistants to this effect is unworthy of credit and the court should, in
our opinion, have estimated the trees on this lot at 8,079. By adding1 this
number to the 33,085 allowed by the trial court for trees on the other portion,
we have a total of 41,164 trees, and the commission should have been limited to
the amount of one peso each for this number of trees.

At the trial of this case the defendant offered to prove by one Sixto Domingo
that he and certain assistants of his counted the trees on the lot last above
referred to in September or October, 1926. Domingo was then the encargado whom
Tan Chay had put in charge upon obtaining the possession of the property from
his vendors. The witness was then asked how many trees were then upon the lot.
The trial court, however, upon objection by the plaintiff’s attorney, refused to
permit the witness to tell. The testimony thus offered was undeniably relevant
and competent, and the trial judge erred in refusing to permit the witness to
state the number of the trees then on the property. But although exception was
taken by the defendant’s attorney to adverse ruling of the court, no specific
error has been assigned in this appeal to the action taken, nor was any showing
made as to the answer that the witness would have given to the question relative
to the number of the trees. It results that advantage cannot here be taken of
the error referred to, and, moreover, the error was apparently without injury,
as the number of trees is satisfactorily shown in the record in Felismeno’s
action to recover for the planting of the trees.

In view of what has been said it results that the judgment must be modified,
and the plaintiff will recover of the defendant the sum of P41,164, with costs.
So ordered.

Malcolm, Villamor, Ostrand, Villa-Real, Hull, Vickers, Imperial, and
Butte, JJ., concur.