G. R. No. 41421. August 31, 1934
ROSENDO R. LLAMAS ET AL., PLAINTIFFS AND APPELLEES, VS. GONZALO ABAYA ET AL., DEFENDANTS. JOAQUIN A. ELEAZAR, APPELLANT.
IMPERIAL, J.:
First Instance of Laguna between the same parties, judgment was
rendered giving preference to the entire credit of the plaintiffs and
declaring it preferential to that of the defendant Eleazar, and
ordering Gonzalo Abaya to pay to the Llamas brothers the sum of
P14,457.38, as principal, with accrued interest thereon at 12 per cent
per annum until November 30, 1931, plus compound interest on said sum
from December 1, 1931, until fully paid, also P1,500 as attorney’s
fees, with costs; and directing, in case of failure of the debtor
within ninety (90) days to deposit said amount or to pay it to the
plaintiffs, that the mortgaged property be sold in conformity with the
law.
Eleazar appealed from that part of the judgment which gave
preference to the entire credit of the plaintiffs, claiming that said
preference was only for the amount of P5,933.30.
On appeal (G. R. No. 37824)[1] this court entered judgment as follows:
“In view of the foregoing, said part of the
appealed judgment is reversed and it is declared that the preference
enjoyed by the plaintiffs-appellees is only for the amount of
P5,933.30, with the stipulated interest thereon and the penalty, with
the costs of this instance against said appellees. So ordered.”
On November 28, 1932, prior to the promulgation of the above
decision of this court, Joaquin Eleazar wrote the letter Exhibit A to
the plaintiffs tendering payment of the sum of P5,933.30 with the
accrued interest thereon, and stating therein that he formally made the
offer in order to avoid payment of the stipulated interest subsequent
to the date of his letter. The plaintiffs ignored said letter.
On December 18, 1933, after the decision of this court had been
promulgated, Joaquin Eleazar deposited said sum of P5,933.30 with the
clerk of court, at the disposal of the plaintiffs. On the following day
the plaintiffs filed a motion alleging that their credit to date
amounted to P12,066.60 and praying that a writ of execution for said
amount be issued and that in the meantime they be authorized to receive
from the clerk of court the amount deposited by Eleazar. The court
granted the latter relief and the plaintiffs received said sum of money
from the clerk of court. Joaquin Eleazar opposed the motion for the
issuance of a writ of execution for the sum stated therein and in his
written opposition maintained that he was bound to pay interest only up
to November 28, 1932, the date on which he made a formal tender of
payment of the principal and accrued interest up to that date, and that
it was possible that subsequent to the date of their acquisition of the
mortgage, Abaya might have made payment to them on account of the
stipulated interest, for which reason he prayed that said plaintiffs be
required to specify what interest they had actually received from Abaya
from said date.
After the hearing of said motion, the court entered its resolution
dated January 24, 1934, declaring that the stipulated interest to which
the plaintiffs are entitled is at the rate of 9 per cent per annum from
March 6, 1929, the date on which they acquired the mortgage from the
Philippine National Bank, up to December 18, 1933, the date on which
Eleazar deposited the sum of P5,933.30 with the clerk of court; that
said interest is compound and should be computed semi-annually in
accordance with the contract; that the principal and interest so
computed should bear interest at the said rate from December 19, 1933,
until fully paid, and that the plaintiffs are likewise entitled to
collect, by way of penalty, 10 per cent of the principal and compound
interest thereon, until fully paid.
The foregoing resolution was properly excepted to and from it this appeal was taken.
The defendant Eleazar contends that the plaintiffs are entitled to
collect interest at 9 per cent per annum only up to November 28, 1932,
the date on which he made a written tender of payment of the principal
and interest thereon which might result from a liquidation; that the
court should have required the plaintiffs to furnish the information
requested by him relative to the interest that Abaya might have paid
subsequent to the date on which they acquired the mortgage from the
Philippine National Bank, and that the stipulated penalty should
consist in only 10 per cent of the principal and accrued interest
thereon up to the date of the filing of the complaint.
The stipulated interest should accrue, and be payable, up to the
date on which the principal is paid. The reason for this is that the
written tender of payment did not have the effect of suspending the
interest and its accumulation in accordance with the provisions of
article 1176 of the Civil Code. Neither did the tender of payment
produce the effects stated in section 347 of the Code of Civil
Procedure, it appearing that Eleazar on that occasion failed to tender
any definite sum by way of interest or penalty representing attorney’s
fees.
The defendant’s contention that he was entitled to a liquidation of
the interest in order to determine the amount which Abaya had paid in
that concept to the plaintiffs from the date on which they acquired the
mortgage, is unfounded. He already had the information which he sought
to obtain a long time ago, in view of the fact that it had already been
alleged in the complaint that Abaya had failed to pay accrued interest
from January 1, 1930, to November 30, 1931. In the dispositive part of
the court’s decision entered on April 26, 1932, it was likewise ordered
that Abaya should pay the interest which he failed to pay up to
November 30, 1931, plus accrued interest from December 1st of said
year, until fully paid. Therefore, from these data, Eleazar should have
already known that Abaya had failed to pay any sum by way of stipulated
interest from January 1, 1930.
As regards attorney’s fees, there is nothing in the record in
support of Eleazar’s contention. The meaning of the phrase “then
unpaid” cannot be confined, as claimed, to the principal and compound
interest thereon accruing up to the date of the filing of the
complaint. The verbal adjective “unpaid”, used therein, refers to the
principal and unpaid interest thereon and cannot be so construed as to
limit the penalty to the date on which the action was brought.
Wherefore, finding that the appealed resolution is in accordance
with law, the same is affirmed in all its parts, with the costs of this
instance against the appellant. So ordered.
Malcolm, Villa-Real, Butte, and Goddard, JJ., concur.
[1] Promulgated October 20, 1933, 58 Phil., 964.