PROVINCIAL GOVERNMENT OF SORSOGON, PLAINTIFF AND APPELLEE, VS. CONSTANTINO STAMATELAKY, JUAN ALCAZAR AND JOSE FAJARDO, DEFENDANTS AND APPELLANTS. MAYON SAWMILL & LUMBER CO., INC…

This is an appeal taken by the defendants
Constantino Stamatelaky, Juan Alcazar and Jose Fajardo from the
judgment of the Court of First Instance of Sorsogon, the dispositive
part of which is as follows:

“Wherefore, judgment is entered sentencing the
defendants to pay jointly and severally to the plaintiff the sum of
P5,538.52, and to the Mayon Sawmill & Lumber Co., Inc., the sum of
P3,140.61, it being understood, however, that this last payment is
subject to the right of the provincial government of Sorsogon to be
paid first. The plaintiff is absolved from the cross-complaint and
counterclaim.

“The defendants shall pay the costs of suit. So ordered.”

In support of their appeal the appellants have assigned eight
errors which are alleged to have been committed by the trial court in
its judgment and with which we shall deal in the course of this
decision.

The following facts were established at the trial without controversy:

Notice having been published in the Official Gazette of September
11, 1928 for the submission of bids to construct the building of the
Provincial Hospital of Sorsogon, there were received in the office of
the district engineer of said province three proposals (Exhibit J), one
of which was that of the contractor Constantino Stamatelaky, a
defendant herein, who bound himself to build the said hospital at the
price of P66,000, materials and labor being supplied by him, and to
complete its construction within two hundred working days, which
proposal was duly accepted by the district engineer on October 10, 1928
(Exhibit C). The corresponding contract (Exhibits A to L) was executed
on November 8, 1928 between the defendant Constantino Stamatelaky and
the district engineer Sergio Bayan, the latter on behalf of the
Province of Sorsogon, and was approved by the provincial board of said
province in the resolution of November 14 of the same year (Exhibit F).
The other defendants Juan Alcazar and Jose Fajardo were the bondsmen of
the defendant Stamatelaky with whom they bound themselves jointly and
severally to respond for the sum of P26.400 (Exhibit G), by way of
security for the total and faithful compliance with the obligations
assumed by the said contractor under the aforesaid contract. The
defendant Stamatelaky commenced the construction work during the first
days of January, 1929, intent on terminating the same within two
hundred days, or on July 18, 1929. As he was not able to complete the
work on this date, July 18, 1929, the provincial board of Sorsogon,
upon request of the defendant Stamatelaky and recommendation of the
district engineer (Exhibit N), approved by means of resolution (Exhibit
O) the extension of the aforesaid period for another fifty days from
July 19, 1929, said extension to expire on September 15, 1929. This
extension had the written conformity of the bondsmen Juan Alcazap and
Jose Fajardo (Exhibits P and Q). The 50-day extension having elapsed
with the construction of the building still unfinished, the defendant
Stamatelaky asked for another extension which was denied by the
district engineer. Notwithstanding the fact that the extension granted
him expired on September 15, 1929, the defendant Stamatelaky continued
the work from October 15 to November 15, 1929 when he abandoned or
delivered the same to the district engineer (Exhibit M). In view
thereof, the district engineer, with notice to the bondsmendefendants
(Exhibit M) and without making an inventory of the materials found in
the work, and with the approval of the provincial board (Exhibit N),
annulled the aforesaid contract in conformity with paragraph 51 of the
general conditions thereof, and from November 16, 1929 took charge of
the continuation of the construction work in accordance with the
stipulation contained in the aforesaid contract. The building was
completely finished on March 6, 1930.

From the time the defendant Stamatelaky began the construction of
the building until October 15, 1929, the provincial government of
Sorsogon was able to pay him the sum of P53,460, which is 81 per cent
of the total price of the work (P66,000) and is the value of 90 per
cent of the work done until the said date of October 15, 1929,
including the materials found in the place (Exhibit 2).

In continuing and finishing the construction of the building in
question, the provincial government of Sorsogon spent the sum of
P18,078.52 (Exhibits R to Z, AA to ZZ and A-1 to A-67) which, added to
P53,460 which had been paid to Stamatelaky, gives a total of
P71,538.52, or P5,538.52 more than the stipulated price of P66,000. Out
of the aforesaid P18,078.52 there was expended for salaries and wages
the sum of P7,464.14 which represented approximately 40 per cent of the
total value of the materials. After the completion of the building some
of the unused materials remained in the possession of the plaintiff and
some were employed by it in other works. The parts which remained to be
finished when the government took over the work on November 16, 1929
were the ceiling1 and the door of the kitchen, the wall thereof which
cost P1,000, the upper door of the ceiling, and the cesspool which cost
P1,000.

Inasmuch as the provincial board had resolved to remit the payment
of liquidated damages, the plaintiff seeks in this action to recover
only the aforesaid excess of P5,538.52.

The Mayon Sawmill & Lumber Co., Inc., with prior leave of the
court, filed a complaint in intervention wherein recovery was sought of
the sum of P3,140.61 as the value of materials alleged to have been
furnished the defendant Stamatelaky for the construction of the
building in question.

The defendants-appellants, by way of defense, allege that what was
done by the defendant Stamatelaky from October 15 to November 15, 1929
was equivalent to 5 per cent of the entire work, but, notwithstanding
his demands, the plaintiff did not make a valuation thereof or of the
materials left by him when he abandoned the aforesaid work; that,
inventorying the materials unused when the plaintiff continued the
construction of the building under consideration, there were only
lacking materials valued at P1,500 for the completion of the work; that
these materials consisted of 80 or 90 zinc sheets for the watershed,
materials for left and back sides of the building, some P300 worth of
paint, a little amount of cement, and two lavatories; that the labor
necessary to finish the work might require an expense of some P2,000;
that the materials used by the said contractor are listed in the stub
book (Exhibit 5) ; that after the work was abandoned, there were left
in the possession of the district engineer the tools of the said
contractor and a house used as an office and built of strong materials
(Exhibit 9) ; that upon request made to the district engineer (Exhibit
10), the latter, on November 15, 1930, sent to the said contractor two
lists of the unused materials (Exhibits 6 and 11) ; that according to
Exhibit 6, after the construction of the building, there was an excess
of materials having a value of P4.834.38, some of which were used in
other works of the plaintiff (Exhibit 7) ; that Stamatelaky does not
know whether the said Exhibit 6 is the list furnished him by the
district engineer of Sorsogon.

The first question to decide is raised in the first assignment of
error, and it is whether or not the P18,078.52 spent by the herein
plaintiff, the provincial government of Sorsogon, for the construction
of its provincial hospital from the time it took over the work on
November 16, 1929 until its completion on March 6, 1930, are excessive,
unreasonable and inequitable.

The defendants-appellants contend that inasmuch as when the work
was abandoned, 90 per cent thereof had already been finished, aside
from the additional 5 per cent done from October 15 to November 15,
1929, at a cost of P53,460 which represents 80 per cent of the total
agreed price of P66,000, the expenses incurred by the plaintiff in
terminating the remaining 5 per cent of the work and which amounted to
P18,078.52, or 20 per cent of the aforesaid stipulated price of
P66,000, must be excessive and unreasonable. Thus the
defendants-appellants are relying on a mere conjecture. As against
their contention there exist in the record Exhibits R to Z, AA to ZZ
and A-1 to A-67, which are receipts and vouchers proving the different
expenses made by the Province of Sorsogon for the purchase of materials
and for the construction of the said provincial hospital from the time
it took charge thereof, which documents were duly admitted in evidence
in this case and were not impugned by the defendants as being false or
fraudulent, with the exception of Exhibits U, Y, EE, JJ, NN, 00, A-45
and A-48 which are claimed to be confusing because they include items
having no relation to the construction work of the said hospital. The
voucher Exhibit U, while evidencing purchases of materials used in
other works, shows that out of the one hundred barrels of cement
bought, seventy were employed in the construction of the said hospital;
the voucher Exhibit Y shows that all the items therein contained refer
to materials purchased for the construction of the said hospital;
Exhibit EE shows that that materials bought under one of the vouchers
were utilized in the same construction; Exhibit NN consists of several
order sheets for different works, but in some of them it is expressly
stated that the materials were for use in the construction of the
provincial hospital of Sorsogon; it appears from Exhibit 00 that the
sum of P8.65 was paid for the truck transportation, from the storeroom
to the provincial hospital, of certain materials used in the
construction of the said provincial hospital and the Castilla
waterworks construction; as regards Exhibits A-45 and A-48, although
the order sheets merely show the items referring to materials, it is
inferable that these materials or a part thereof were used in the
construction of the provincial hospital because the corresponding
provincial voucher bears the approval of the chief or director of the
provincial hospital, in Exhibit A-45, of the whole amount spent and, in
Exhibit A-48, of only a part of P377.52 of the total P2,990.98. Exhibit
JJ, which is a voucher for the purchase of 170 barrels of “Apo” cement,
is the only exhibit which does not give the amount employed in the
construction of the provincial hospital, but the assistant district
engineer, Jose R. Morelos, testified that the said cement was used in
the said construction. In view of the specific nature of the evidence
adduced by the plaintiff, which, by means of uncontroverted documents
showing the different items, proved the expenses incurred in the
purchase of materials, the bare allegation that said materials were
bought at exorbitant prices is not sufficient to destroy the probative
value of the aforesaid documents.

The disbursements for salaries and wages made by the plaintiff from
the time it continued the construction of the hospital are specified,
together with the materials purchased, in the list Exhibit R which, as
we have already stated, has not been impugned as being false or illegal.

Furthermore, the estimate that 95 per cent of the work was
accomplished by the defendant Stamatelaky at an outlay of P53,460
cannot be the basis for the deduction that the sum of P18,078.52 spent
by the plaintiff for finishing the remaining 5 per cent of the building
is excessive, for the reason that, according to the uncontradicted
testimony of the assistant district engineer of Sorsogon, Jose R.
Morelos, such estimate included the materials found in the place and
the maximum amount was given in order that the said contractor could
collect more money from the government of Sorsogon with which to pay
the creditors who furnished him materials, otherwise they would cease
giving him additional materials which he would need to continue his
work.

The question propounded by the second assignment of error is
whether or not the defendants should be credited with the value of the
materials left after the completion by the government of the .said
provincial hospital of Sorsogon, some of which were used in other works
of said province.

The value of these materials, according to the list Exhibit 11
which was certified correct by the property clerk of the Province of
Sorsogon and introduced in evidence by the defendants, is P2,708.04.
This valuation is assailed by the defendants on the ground that, as it
was made without their knowledge, it is arbitrary.. It is not enough in
this instance to allege that the valuation in question is arbitrary in
order to justify a declaration of its nullity, especially when it is
borne in mind that the same is evidenced by a document duly certified
as correct by the government official authorized to do so. The
defendants did not question the correctness of said document during the
trial of this case, nor did they submit their own appraisal of the
value of the unused materials with a view to demonstrating to and
convincing the court that the aforesaid Exhibit 11 is arbitrary and
inaccurate.

The value of the materials remaining upon the termination of the
said hospital by the plaintiff, or P2,708.04, ought to be credited in
favor of the defendants, inasmuch as it is not just or righteous that
the same should be charged to them after the Government had kept and
utilized said materials. Moreover this should have been the intention
of the provincial government of Sorsogon, as appears from the letter
Exhibit 7 written by the provincial auditor B. Fernandez to the
defendant Stamatelaky on September 11,1930 in which the sum of
P2,708.03, as the value of the unused materials, was deducted from the
amount sought to be collected from said defendant and his bondsmen by
way of damages and for materials not paid upon the completion of the
work.

In support of its contention that the defendants are not entitled
to be credited with the aforesaid sum, the plaintiff in its brief cites
the second paragraph of article 51 of the general conditions of the
contract which provides as follows:

“It is agreed and understood that, upon such
annulment of the contract, the Director will ascertain and fix the
value of the work completed by the contractor and not paid for by the
Government and usable materials on the line of the work taken over by
the Government at the time of said annulment and in the event that the
total expenditures of the Government on completion of the work,
including all charges against the project prior to annulment of the
contract are not in excess of the contract, price, due allowance being
first made for all claims of the Government in connection with the
contract, then the difference between the said total expenditures of
the Government and the contract price may be applied to settle claims
filed under paragraph (37), and the balance, if any, may be paid to the
contractor, but no amount in excess of the combined value of the unpaid
completed work, retained percentage and usable materials taken over by
the government at the time of annulment of the contract shall be so
paid, nor shall any claim for prospective profits or profit on the work
done after cancellation of the contract be considered or allowed.”

It is evident that the above-quoted paragraph has reference, in the
first place, to the action to be taken of the amount in excess of the
contract price in the event that, after the completion of the work by
the government which might take it over upon abandonment by the
contractor, the total expenses would be less than the whole contract
price, and, in the second place, to the excess of expenses if the
expenditure of the government in completing the work, plus the amount
already paid by the contractor, would be more than the agreed price of
the work.

Conformably to the second part of the above-quoted paragraph, there
shall not be paid to the contractor any sum in excess of the combined
value of the unpaid completed work and the usable materials that might
be taken over by the government at the time of the cancellation of the
contract. In the instant case the usable materials taken over by the
government upon continuing the work had already been paid. The cost of
the unfinished and unpaid portion of the work taken charge of by the
government amounted to P18,078.52, including the remaining usable
materials valued at P2,708.03 which were employed by the government in
its other works. The value of the finished portion, plus that of the
usable materials remaining when the government continued the work, was
P53,460, leaving P12.540 of P66,000, the price of the contract.
Inasmuch as the government spent P18,078.52 to complete the work,
including the value of the remaining usable materials, the combined
value of the unfinished and unpaid portion of the work and the
remaining usable materials, and the combined value of the finished and
paid portion and the usable materials taken over by the government,
exceeded by P5,538.52 the stipulated price of P66,000. According to the
second part of paragraph 2 of section 51, above-quoted, said excess
should not be paid to the contractor, otherwise the contract price
would be increased; it is he who should pay the same to the Government,
after deducting the value of the unused materials employed by the
government in other works. The theory adopted by the plaintiff and the
lower court, the first, in contending and, the latter, in holding that
the defendants ought to pay to the government the value of said
materials, is therefore erroneous.

It results that the lower court erred in not giving the defendants
credit for the sum of P2,708.08, the value of materials left upon the
completion of the construction of the provincial hospital of Sorsogon.

Referring now to the intervention filed by the Mayon Sawmill &
Lumber Co., Inc., the first question to decide is whether or not said
entity has the right to intervene in this case to claim the value of
the materials supplied to the defendant Constantino Stamatelaky for the
construction of the hospital in question.

It is not tenable to contend, as do the defendants, that the
intervention of the Mayon Sawmill & Lumber Co., Inc, should not be
admitted on the ground that it was filed when the case was already
about to terminate. The law and the decisions lay down the rule that an
intervention may be filed “at any period of a trial”, that is, during
the trial (sec. 121, Act No. 190; Pelismino vs. Gloria, 47 Phil., 967; Otto Gmur, Inc. vs.
Revilla, 55 Phil., 627). In this case the intervention of the Mayon
Sawmill & Lumber Co., Inc. was filed when the plaintiff Provincial
Government of Sorsogon was presenting its rebuttal evidence, a period
forming part of the trial of the case.

With respect to the argument that the said intervenor has no direct
interest in the matter in litigation, section 1923, in relation to
section 1921, of the Revised Administrative Code—in force at the time
of the execution of the building contract involved herein and at the
time of the filing of the bond by the defendants bondsmen—provides that
if by the terms of the bond the obligors are bound to satisfy claims
for material and labor, the bond shall not be surrendered until the
expiration of two months from the acceptance of the work. From this it
is inferable that those who supply materials and labor are entitled to
claim the value of the materials and labor supplied to the contractor.
This right may be availed of by them either by intervening in-the
action to be brought by the owner of the work against the contractor
for violation of the terms of the building contract, the faithful
performance of which has been guaranteed by the bondsmen, or by
instituting an independent suit. The entity Mayon Sawmill & Lumber
Co., Inc. consequently has direct interest in the matter in litigation
and a right to intervene in the present case.

In their fourth assignment of error the defendants also argue that
the trial court erred in declaring them in default as regards the
complaint in intervention, the corresponding summons not having been
served on them.

It appears that on December 13, 1932, the Mayon Sawmill &
Lumber Co., Inc., through its attorney, filed with the court a motion
asking leave to intervene as against the defendants in the present
case, a complaint in intervention being attached thereto; that on the
22nd of the same month and year the defendants filed an objection to
said motion and complaint in intervention in which it was prayed that
the same be denied; that on February 11, 1933, the lower court issued
an order authorizing the Mayon Sawmill & Lumber Co., Inc., to
intervene and admitting its complaint in intervention; and that on
March 15, 1933, the defendants, through their attorney, filed an
exception to said order.

Section 397 of the Code of Civil Procedure provides that an
acknowledgment on the back of the summons by the defendant or his
voluntary appearance in the action shall be equivalent to service. The
circumstances that the defendants filed an objection to the motion and
the complaint in intervention, with prayer for their denial, and that
they afterwards excepted to the order of the lower court authorizing
the Mayon Sawmill & Lumber Co., Inc., to intervene and admitting
its complaint in intervention, amount to a voluntary appearance of said
defendants, a submission to the jurisdiction of the competent court in
respect to the aforesaid complaint in intervention, and a waiver of
service of summons (Flores vs. Zurbito, 37 Phil., 746).

The lower court, therefore, committed no error in declaring the defendants in default as regards the complaint hi intervention.

Under the fifth assignment of error the defendants maintain that
the lower court erred in denying their motion for reconsideration in
which it was prayed that the order of default be set aside.

This court has uniformly held that the vacation of an order of
default rests entirely upon the sound discretion of the court issuing
it, and, as a general rule, the same should not be set aside unless the
defendant shows that he has a good and meritorious defense (Camus vs. Paulino, 59 Phil., 411; Bafiares vs. Flordeliza and Gavito, 51 Phil., 786; Felismino vs. Gloria, 47 Phil., 967; Mapua vs. Mendoza, 45 Phil., 424; Larrobis vs. Wislizenus and Smith, Bell & Co., 42 Phil., 401; Daipan vs. Sigabu, 25 Phil., 184; Coombs vs. Santos, 24 Phil., 446).

Section 113 of the Code of Civil Procedure authorizes the filing of
a motion praying that a party be relieved from the effects of a
judgment, order or other proceeding taken against him through his
mistake, inadvertence, surprise or excusable neglect.

Accordingly, the point to be decided in connection with the nun
assignment of error is whether or not the dedendants were negligent in
their laiiure to tile in time an answer to the complaint m
intervention, and, in the affirmative case, whether their negligence is
excusable and whether they have a meritorious defense.

Manuel M. Calleja, attorney for the defendants, excepted on March
15, 1933 to the Court of the Court of First instance of Sorsogon
autnorizmg the Mayon Sawmill & Lumber Co., Inc., to intervene and
admitting the complaint in intervention attached to its motion, un
December 22, 1932, when tne defendants, through their attorneys
(Calleja and Gloria, objected to the motion of the Mayon Sawmill &
Lumber Co., Inc., asking leave to intervene, to which its complaint in
intervention was attached, the said defendants were already aware of
the existence of said complaint; and on March 15, 1933, they already
knew that tne compiaint was admitted by the court. Since the latter
date the defendants had done nothing towards filing the proper answer
to the aforesaid complaint in intervention. On May 22, 1933, the lower
court, acceding to the motion of the intervenor of May 4, 1933, issued
an order declaring said defendants in default and authorizing the
intervenor to introduce its evidence. On June 7, 1933, said defendants
filed a motion praying that the order of default be set aside and that
the answer attached to said motion be admitted. On June 20, 1933, the
lower court denied said motion for reconsideration for lack of merit.

It appears, therefore, that the defendants were negligent—and their
negligence is without excuse—in permitting the lapse of the period from
March 15, 1933 to May 22 of the same year, or 2 months and 5 days,
before they were declared in default, without filing their answer to
the complaint in intervention.

Referring to the question whether the defense set up in their
answer is meritorious or not, there is no basis for their first special
defense that the lower court is without jurisdiction to take cognizance
of and decide the claim contained in the complaint in intervention, on
the ground that, as the lower court had jurisdiction to entertain and
dispose of the principal case, it also had jurisdiction to take
cognizance of and decide the complaint in intervention, not only as
regards its venue but as regards the amount in litigation.

Neither is there merit in the second special defense that the
complaint in intervention in this case has been improperly admitted,
because, as we have already stated, the Mayon Sawmill & Lumber Co.,
Inc., has by law and by contract direct interest in the matter in
litigation as against the defendants.

There is also no merit in the third special defense set up by the
defendants whereby they deny having signed any bond answerable for any
obligation that might exist between their codefendant Constantino
Stamatelaky and any other private person, for the reason that section
1923 of the Revised Administrative Code and the bond signed by the
defendants make them answerable for any obligation which Constantino
Stamatelaky, as contractor, might contract with those who would furnish
him material and labor.

From what has been said it is evident that the defendants have been
negligent in not filing their answer in due time. Moreover, even if
their answer be admitted, the order of default set aside, and a new
trial had, the evidence that they could present in support of their
special defenses would not change the result of the case.

The lower court did not therefore err in denying the motion for reconsideration.

With reference to the sixth assignment of error, we are of the
opinion that the allegations of the complaint in intervention were
sufficiently proved by the deposition of J. O. Betts, assistant general
‘manager of the intervenor Mayon Sawmill & Lumber Co., Inc., who
testified with respect to the claim of said intervenor in the sum of
P3,140.61 for materials supplied to defendant Stamatelaky, which claim
was made through the district engineer of Sorsogon in the letter
addressed to the latter by the said assistant manager (Exhibit
Y-Deposition).

In view of the foregoing considerations, the judgment appealed from
is modified as regards the claim of the plaintiff provincial government
of Sorsogon, and the defendants are sentenced to pay jointly and
severally to said plaintiff the sum of P2,830.49, with legal interest
from the date of the filing of the complaint until full payment
thereof, the said judgment being affirmed as regards the claim of the
intervenor Mayon Sawmill & Lumber Co., Inc., with costs against
said defendants. So ordered.

Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.

Judgment modified.

---

RESOLUTION ON THE MOTION OF APPELLANTS FAJARDO AND ALCAZAR

February 16, 1938

VILLA-REAL, J.:

This is a motion filed by the defendants and appellants Jose
Fajardo and Juan Alcazar praying that the judgment rendered by this
court be modified so as to relieve them, as bondsmen of their
codefendant and principal Constantino Stamatelaky, from the obligation
of paying to the intervenor Mayon Sawmill & Lumber Co., Inc., the
sum of P5,140.61 for materials furnished their said codefendant and
principal.

This motion is based on the ground that the account presented by
the intervenor Mayon Sawmill & Lumber Co., Inc., covers lumber
deliveries to the defendant Constantino Stamatelaky from September 15
to November 15, 1929, their liability as bondsmen of said
contractor-defendant having ceased on said date, September 15, 1929,
when the extension of fifty days granted to the latter for the
completion and delivery of the work expired.

In reply to the motion the intervenor Mayon Sawmill & Lumber
Co., Inc., alleges that although its bill bears the date of. November
15, 1929, it includes unpaid accounts for lumber delivered long before
said date, September 15, 1929 ; that the bondsmen Juan Alcazar and Jose
Fajardo bound themselves to secure jointly and severally the faithful
and complete performance by the contractor Stamatelaky of the building
contract and the payment of the materials that may be furnished the
said contractor; and that the contractor Stamatelaky did not abandon
the work and the provincial government of Sorsogon did not take charge
of its continuation until November 15, 1929.

According to the bond Exhibit G signed by the bondsmen Juan Fajardo
and Jose Alcazar, they jointly and severally guaranteed the faithful
and complete performance of the building contract executed between the
contractor Constantino Stamatelaky and the provincial government of
Sorsogon, the work to be finished in 200 working days, and the payment
of the materials supplied to him. As the period fixed for the
performance of the contractor’s obligation was 200 working days and the
bondsmen guaranteed the performance of said obligation, the latter’s
liability cannot exceed that of the principal debtor (art. 1826, Civil
Code) ; hence, the original subsidiary obligation of the bondsmen is
only for 200 working days with respect both to the completion of the
work and to the supply of materials. That this was the intention of the
parties is to be deducted from the fact that when on July 18, 1929, the
period of 200 days for the completion and delivery of the work expired
without the contractor being able to finish or deliver said work, the
plaintiff provincial government of Sorsogon, instead of carrying into
effect the terms of the bond, granted the contractor an additional
period of 50 days. In virtue of the bondsmen’s conformity to the
extension, the bond was not extinguished (art. 1851, Civil Code) but it
continued in force until September 15, 1929, when said extension
expired. Inasmuch as the obligation assumed by the bondsmen under their
bond as to materials supplied was only for the term of the building
contract and for any extension that the provincial government of
Sorsogon might concede to the contractor, said bondsmen were liable
only for materials supplied by the intervenor to the contractor and not
paid by the latter until said date, September 15, 1929. The statement
of accounts presented by the intervenor Mayon Sawmill & Lumber Co.,
Inc., includes materials furnished until November 15, 1929 when the
provincial government of Sorsogon took charge of the continuation of
the work, without a specification of the value of materials supplied
until September 15, 1929. If, as we have stated, the obligation of the
bondsmen under the contract was merely to secure the payment of
materials furnished until September 15, 1929, they cannot be held
answerable for materials delivered after said date, the contractor to
whom said materials were supplied being solely liable therefor.

In view of the foregoing considerations, the judgment rendered by this court is modified so as to read as follows:

“Wherefore, modifying the appealed judgment, the
defendants are sentenced jointly and severally to pay the plaintiff the
sum of P2,830.49 and the right is reserved to the intervenor to prove
the value of materials furnished the defendant Constantino Stamatelaky
and not paid by the latter until September 15, 1929, said amount to be
paid by the defendants jointly and severally, and the value of
materials furnished the defendant contractor after said date and up to
November 15, 1929 should be paid solely by the latter, with costs
against the defendants in respect to the plaintiff, and without special
pronouncement in respect to the intervenor. So ordered.”

So ordered.

Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.