CARLOS YOUNG, PLAINTIFF AND APPELLANT, VS. FRANCISCO M. BLANCO, DEFENDANT AND APPELLEE. LUZON SURETY CO., INC., SURETY AND APPELLEE.

In
August, 1935, the plaintiff filed a petition in the Court of First
Instance of Manila for the issuance of an alias writ of execution of
the judgment rendered by said court in civil case No. 43649, not on the
property of the defendant Francisco M. Blanco who turned out to be
insolvent, but on that of his surety, the Luzon Surety Co., Inc. The
court denied his petition on September 27, 1935, and likewise denied
that filed by him on October 1st, asking that a day be set for the
presentation of his evidence to prove damages in the amount of P300,
which he claimed to have suffered by reason of the possession by the
defendant of the automobile to be discussed later, from May 11, 1933,
to April 17, 1935. The plaintiff appealed to this court from the orders
denying his two petitions, and now contends in his brief that the lower
court committed the following errors, to wit:

“1.
The lower court erred in denying, the appellant’s motion to be allowed
to prove damages against the bond of the Luzon Surety Company by reason
of the redelivery to the defendant of the property seized under
replevin in this case.

“2. The lower court erred in denying the appellant’s motion for a new trial.”

The material facts relative to the case, which are not disputed by the parties, may be stated briefly as follows:

On June 20, 1932, the defendant Francisco M. Blanco executed in favor
of the plaintiff four promissory notes, each in the sum of P100,
excepting the last one which was for P107.77, in substitution for old
ones that he had failed to redeem, amounting to P407.77. The four notes
were of the same tenor except as to the dates of their respective
maturity, which were from month to month counting from July 31, 1932,
and they imposed upon the defendant the obligation to pay interest at
the rate of 12 per cent per annum, plus a penalty equivalent to 20 per
cent of the sums stated therein, in case of default. To secure the
payment of said promissory notes, the defendant constituted in favor of
the plaintiff a mortgage on a second hand automobile De Soto “6”
Sedan, motor No. K-86492, serial No. KL-528-L, which mortgage was duly
registered in the office of the register of deeds of the Province of
Rizal. The defendant having failed to redeem his promissory notes, the
plaintiff, by virtue of the terms of the mortgage constituted in his
favor, asked for and obtained from the court the seizure of the
above-mentioned automobile. For the purpose of setting aside the writ
of seizure, the defendant, jointly with the Luzon Surely Co., Inc.
filed a bond in the sum of P800, which was then double the alleged
value of the automobile. Under the bond, the two obligors bound
themselves to deliver said automobile to the plaintiff, if such
delivery should be adjudged by the court at the proper time, or to pay
him the value thereof, together with any other sum to which said
plaintiff might be entitled, plus the costs. By virtue of the bond so
filed, the defendant succeeded in retaining possession of said
automobile. After the corresponding trial, judgment was rendered by the
court ordering the defendant to return said automobile to the
plaintiff, or otherwise to pay him the sum of P400, the value thereof.
From the judgment rendered against him, the defendant appealed to this
court but the decision was adverse to him. After the case had been
remanded later to the lower court, the judgment was executed and the
automobile in question was sold at public auction for the sum of P300.
The proceeds of the sale were applied to the partial payment of the
judgment obtained by the plaintiff, which amounted to P754.88 including
interest, the costs and the penalty, thereby leaving a balance of
P454.88 to be paid by the defendant. To recover said balance, the
plaintiff sought the issuance of a writ of execution against the
defendant, but nothing could be recovered from him because he turned
out to be insolvent. It was then that the plaintiff filed his said
petition of August, 1985, seeking the issuance of an alias writ against
the defendant for the execution of the judgment rendered against him on
the property of his surety, the Luzon Surety Co., Inc., with the result
hereinbefore stated.

The pertinent part of the bond filed by the defendant and the Luzon Surety Co., Inc. is couched in the following terms:

“Now
therefore, we, Francisco M. Blanco of Malabon, Rizal, as principal, and
Luzon Surety Company, Incorporated, of Manila, as sureties, in
consideration of the above and of the return of said property to said
defendant, hereby bind ourselves, jointly and severally, in the sum of
eight hundred pesos (P800), Philippine currency, which is double the
value of the property as stated in the affidavit of the plaintiff, for
the delivery hereof if such delivery be adjudged, and for the payment
of such sum to him as may be recovered against the defendant, and the
costs of the action.”

As may be seen,
the foregoing is entirely in accordance with the provisions of section
267, in connection with section 272, of Act No. 190, which read as
follows:

“Sec. 267. Delivery of property to the defendant.—At
of the bond so filed, the defendant succeeded in retaining possession
of said automobile. After the corresponding trial, judgment was
rendered by the court ordering the defendant to return said automobile
to the plaintiff, or otherwise to pay him the sum of P400, the value
thereof. From the judgment rendered against him, the defendant appealed
to this court but the decision was adverse to him. After the case had
been remanded later to the lower court, the judgment was executed and
the automobile in question was sold at public auction for the sum of
P300. The proceeds of the sale were applied to the partial payment of
the judgment obtained by the plaintiff, which amounted to P754.88
including interest, the costs and the penalty, thereby leaving a
balance of P454.88 to be paid by the defendant. To recover said
balance, the plaintiff sought the issuance of a writ of execution
against the defendant, but nothing could be recovered from him because
he turned out to be insolvent. It was then that the plaintiff filed his
said petition of August, 1985, seeking the issuance of an alias writ
against the defendant for the execution of the judgment rendered
against him on the property of his surety, the Luzon Surety Co., Inc.,
with the result hereinbefore stated.

The pertinent part of the bond filed by the defendant and the Luzon Surety Co., Inc. is couched in the following terms:

“Now
therefore, we, Francisco M. Blanco of Malabon, Rizal, as principal, and
Luzon Surety Company, Incorporated, of Manila, as sureties, in
consideration of the above and of the return of said property to said
defendant, hereby bind ourselves, jointly and severally, in the sum of
eight hundred pesos (P800), Philippine currency, which is double the
value of the property as stated in the affidavit of the plaintiff, for
the delivery hereof if such delivery be adjudged, and for the payment
of such sum to him as may be recovered against the defendant, and the
costs of the action.”

As may be seen,
the foregoing is entirely in accordance with the provisions of section
267, in connection with section 272, of Act No. 190, which read as
follows:

“Sec. 267. Delivery of property to
the defendant.—At any time before the delivery of the property to the
plaintiff, as in this section provided, the defendant may, if he do not
except to the obligation or sureties of the plaintiff, require the
return thereof, upon delivering to the clerk a written obligation to
the plaintiff executed by him, with two or more sufficient sureties, to
the effect that they are bound in double the value of the property as
stated in the affidavit of the plaintiff, for the delivery thereof
to the plaintiff, if such delivery be adjudged, and for the payment of
such sum to him as may be recovered against the defendant. If a
return of the property be not so required within five days after the
taking and service of notice to the defendant, it must be delivered to
the plaintiff, except as provided in section two hundred and seventy.

“Sec. 272. Judgment.—After
a trial of the issues the court shall find in whom is the right of
possession and the value of the property and shall render judgment in
the alternative for the delivery thereof to the party entitled to the
same or for the value, in case delivery can not be made, and also for
such damages as either party may prove, and for costs.”

The material parts of the above-quoted clause of the bond and those of
the above-cited sections are purposely underlined so that it may
clearly be seen what obligations had been assumed by the obligors under
said bond, and what are the obligations imposed by law. It will be seen
that the defendant and his surety bound themselves to deliver the
automobile to the plaintiff, if such delivery should be adjudged, or
otherwise to pay the value thereof, and in each case to answer and to
pay to the plaintiff any sum to which he may be entitled, by way of
damages, according to his evidence, plus the costs. The legal provision
relative to damages and costs (“and also for such damages as either
party may prove, and for costs”), is common to the two cases wherein
judgment in the alternative must be rendered for the delivery or return
of the thing released from seizure, or for the payment of the value
thereof in case its delivery or return can no longer be made. This is
all the more evident in the present case because, from the time the
automobile was returned to the defendant by virtue of his bond on May
11, 1933, to April 17, 1935, when he delivered said automobile to the
sheriff for sale at public auction, one year, eleven months and six
days elapsed, which lapse of time is more than sufficient to show the
deterioration or impairment which it did not fail to suffer during said
period.

If the automobile, at the time the defendant and the
Luzon Surety Co., Inc. filed the bond, was worth P400, as they so
admitted implicitly in their bond, and the proceeds of the sale thereof
at public auction were only P300, the conclusion appears evident that
the deterioration was worth P100, excluding interest. Therefore, the
damages suffered by the plaintiff are equivalent to said sum plus the
legal interest thereon and the costs, and nothing more. This being
known, it appears that there neither was nor is any necessity for the
plaintiff to present evidence on damages, inasmuch as the court had
such evidence before it when it issued the orders appealed from.

For all the foregoing, the orders appealed from are hereby reversed,
and the Luzon Surety Co., Inc. is ordered to pay to the plaintiff the
sum of P100 plus legal interest thereon from September 21, 1935, the
date on which it was notified of said plaintiff’s motion for the
issuance of a writ of execution against it, until fully paid, and to
pay the costs of this appeal, without prejudice to any other alias writ
of execution that the plaintiff may be able to obtain against the
defendant, in case the latter’s financial condition should improve,
within the period of prescription, for the recovery of any balance
still due from him, plus interest thereon. So ordered.

Avanceña, C. J., Villa-Real, Imperial, and Laurel, JJ., concur.