[G.R. No. L-6573. February 28, 1955.]
NARCISO JOCSON,plaintiff-appellant,vs. CAPITOL SUBDIVISION, INC., and THE COURT OF APPEALS,respondents-appellees.
DECISION
BENGZON, J p:
Review of a decision of the Court of Appeals declaring that Narciso Jocson had forfeited all rights to demand the conveyance to him of Lot No. 54-B by the Capitol Subdivision, Inc.
According to said Court,
"The evidence of record is to the effect that in April of 1937, Capitol Subdivision, Inc., entered into an agreement with one Francisco de Oca promising to convey to the latter a parcel of land known as Lot No. 45-B (being a portion of Lot 410-B of the Bacolod Cadastre), upon payment of P1,856.00 interest at 8% per year, payable in 120 equal monthly installments of P19.00 each to be paid within the first ten days of each month. The original contract was lost, but the parties agree that it was a standard printed contract of the vendor, stipulating, inter alia, that:
"3. That the possession of the property subject matter of this contract, shall be delivered to the VENDEE upon the signing of this agreement and upon the delivery to the VENDOR of the initial payment above stipulated.
4. That should the vendee fail to pay and deliver to the VENDOR any of the monthly payments or installments after the lapse of sixty (60) days after any of the monthly installments has become due and payable, this contract shall automatically be forfeited and annulled and the said VENDOR shall be at liberty to dispose of the parcel of land to any other person in any manner whatsoever as if this contract has never been executed and entered into and in the event of such rescission, the sum of money already paid by the VENDEE to the VENDOR under this contract shall be considered and taken as rentals exclusively for the use of the said parcel of land. The VENDEE hereby waives all rights to ask or demand for the return to him of the amount of money so paid or any part thereof and agrees to peaceably vacate the said parcel of land upon demand; cAECST
xxx xxx xxx
6. Without prejudice to the rights of the VENDOR to declare this contract null and forfeited and subject to the conditions mentioned in paragraph No. 5 of this contract, upon failure of the VENDEE to pay the monthly installments mentioned in the same, he shall pay by way of liquidated damages on all such installments falling due and unpaid, an interest at the rate of the one (1%) PER CENT per month or fraction thereof until paid.
xxx xxx xxx
10. That on the completion of the payments herein stipulated the VENDOR agrees to deliver to the VENDEE, free from all liens and incumbrances the corresponding owner's duplicate certificate of title to the said parcel or parcels of land above described, upon payment by the said VENDEE to the VENDOR of the corresponding registration fee therefor as well as for the issuance of the corresponding certificate of title; but it is expressly stipulated that before the complete payment to the VENDOR of the whole purchase price of property subject matter of this contract, no registrable title or right is hereby vested on the VENDEE". (Exh. 1)
"On May 5, 1948, the promisee Francisco de Oca assigned in writing his rights under the contract to plaintiff-appellee Narciso Jocson. This assignment (Exh. A) bears the conformity of the defendant-appellant Capitol Subdivision, Inc., and its main provisions were the following:
"That for and in consideration of One (P1.00) peso, and other valuable considerations, which I have heretofore received from Narciso Jocson, also Filipino, of legal age, married to Flory Granada, and likewise with residence and postal address at Talisay, Negros Occidental, I hereby sell, convey and transfer, by way of absolute sale, in favor of the said Narciso Jocson his heirs sand assigns, all my rights, interests and participations in this contract to sell by installments executed by and between the Capitol Subdivision, Inc., and myself on April 19, 1937 covering a parcel of land, otherwise known as Lot No. 45-B, a portion of the original Lot No. 410-B of the Bacolod Cadastre, consisting of Five Hundred and Twenty (520) square meters;
That the aforesaid lot is at present indebted to the Capitol Subdivision, Inc., by way of installments the sum of P349.00 plus interest due;
That by virtue of these presents, the said Narciso Jocson shall be subrogated to ally my rights and obligation under the said contract to sell, and I hereby authorize the Capitol Subdivision, Inc., to issue in his favor the corresponding final deed of sale over the said property upon the fulfillment of the terms and conditions of the said contract to sell". (Exh. A).
"Narciso Jocson made no payments on account of the acknowledged balance until November 15, 1948, when he delivered P200.00 on account, that was receipted for as such by appellant corporation in its receipt No. 1375, marked as Exh. B.
"On December 2, 1949, Capitol Subdivision, Inc. sent Joscon a registered letter (Exh. 2), calling attention to his overdue installments, and to "the company's policy to insist upon prompt payment of installments as they fall due", and informing him that —
"unless we receive satisfactory payment within ten (10) days from this date we will be constrained to cancel your contract without further notice".
"Jocson claims that in the month of December, 1949, on a day that he could not fix with certainty (t.s.n., pp. 41-42) but after receiving the letter, he repaired to the subdivision company's offices and was there informed that his balance including interest due amounted to P2,018.00, which he protested. Finally, Jocson, in the first week of January, 1950, made tender of the amount of (P2,018.00), but was informed that the contract had been already forfeited and the lot sold to other persons. In view of this development, Jocson requested the amicable intervention of attorney Emilio Parreño, but it proved fruitless. Wherefore, a formal tender in writing was made in February of 1950, and suit was filed on June 8, 1950." DAEIHT
Under the above-described facts the Court of Appeals declared that after the assignment to him, Jocson became bound to pay P349, plus interest to the Capitol Subdivision, Inc. from May 1948 by installments of P19.00 within the first ten days of each month. It also declared that his failure to pay the monthly installments due from March to December 1949 authorized the Capitol Subdivision, Inc. to cancel the contract.
Now, according to petitioner's presentation of his appeal four principal points are involved, namely (a) whether the assignment Exh. A completely superseded the original contract to sell Exh. 1; (b) whether Capitol Subdivision, Inc. waived the forfeiture clause in Exh. 1; (c) whether Narciso Jocson breached his contract; (d) whether Capitol Subdivision could legally cancel such contract without previous judicial or notarial demand.
A. As to the first, we agree to the views of the Court of Appeals. In Exh. 1 Narciso Jocson expressly "subrogated" himself to "all the rights and obligations" of de Oca under "said contract to sell" of "April 19, 1937." It is reasonably clear that said Exh. 1 became a part of Exh. A. At most, the first was modified by the latter contract in so far as they are inconsistent. The obligation to make monthly payments of P19.00 with interest, and the consequences of non-payment — all of which are embodied in Exh. 1, — stood unmodified by Exh. A.
B. Conceding arguendothat Exh. A merely modified Exh. 1, the appellant contends that the forfeiture clause was waived by the acts of Capitol Subdivision, Inc. in permitting Francisco de Oca to lag behind in the payment of installments; so much so that when Jocson assumed the obligations of de Oca in May 1948, all the installments were already overdue for more than one year.
There was no express waiver. Mere tolerance or liberality to Oca did not establish an obligation to be liberal to Jocson too. Mere delay in exercising one's right to forfeiture does not necessarily mean a waiver thereof.
"Waiver must be manifested in some unequivocal manner. A mere withholding of the enforcement of the right to payment is not a waiver of anything, nor does a waiver arise from forbearance for a reasonable time." C.J., Vol. 67, p. 306.
"Mere neglect to insist upon a forfeiture would not alone constitute a waiver." Ibid., p. 306.
"The intention to waive the right or advantage in question must be shown clearly and convincingly. The best evidence of intention is to be found in the language used by the parties. When the only proof of intention rests in what a party does or forbears to do, his acts or omissions to act relied upon should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish a then known particular right or benefit that no other reasonable explanation of his conduct is possible." Fernandez vs. Sobido, et al., 70 Phil. 159."
Of course it would be a different matter if forfeiture is now predicated upon defaults imputable to de Oca; because, as correctly stated in the appealed decision, "the conformity (expressly given by) the Capitol Subdivision to the assignment (to Jocson) is a recognition that the contract was in force notwithstanding the lapse of the period of ten years; it was, in effect, a waiver of any forfeiture incurred prior to the assignment".
C. On the third point, the appellant maintains that there was no breach thru non-payment of installments, because the manner and time of paying the amount of "P349, plus interest due" in Exh. A was "undetermined", and should have been fixed by the court pursuant to Art. 1124 of the Civil Code. This position is merely a consequence of petitioner's original proposition that Exh. A totally extinguished Exh. 1 and was completely independent of it. But such proposition has been rejected hereinbefore.
D. There is a paragraph in Exh. 1 which reads as follows:
"5. It is understood that after the first year from the date of the execution of this contract and provided the vendee has fully and faithfully complied with the payment of the monthly installments within the said period, the period of grace during the second year shall be ninety (90) days from the date of any of the monthly installments for the second year falls due. Provided, however, that, subject to the same conditions an additional period of grace of thirty (30) days shall be granted to the vendee for each succeeding year. (Italic ours.)."
Invoking this paragraph, appellant's attorney argues that forfeiture of Jocson's rights was prematurely exercised (in Jan. 1950) because he had 330 days of grace to catch up with his payments which period expired only on February 18, 1950. It is enough to observe that said periods of grace may only be invoked by one who has "faithfully complied with the payment of the monthly installments"; but neither Oca nor Jocson "had faithfully complied".
A couple of weeks before the submission of this petition for review, we decided the case of Adiarte v. Court of Appeals, G.R. No. L-3517 wherein, considering the effects of failure to pay installments in a sale of realty, we made these pronouncements:
"Besides, even assuming that there is an express stipulation in the Rimando-Adiarte contract Exh. B to the effect that, in default of payment by Adiarte to Gregorio Araneta, Inc. of the necessary monthly installments for her respective portion of the said lot, the resolution of the Rimando-Adiarte contract Exh. B shall take place ipso jure, and Rimando will become the owner of the Adiarte's portion of said lot if Rimando continues paying the balance of monthly installment with Gregorio Araneta, Inc. and whatever amounts paid to the latter by Adiarte shall be forfeited and considered paid by Rimando, Adiarte may still pay to Rimando the balance of monthly installments he may have paid to Gregorio Araneta, Inc. for Adiarte, because no demand for the resolution of Rimando-Adiarte contract has been made by Rimando upon Adiarte by suit or by notarial act, in accordance with Art. 1504."
For the purpose of examining this litigation in the light of the above decision, we gave due course to the petition for review. Upon careful consideration however, we are satisfied that the doctrine does not govern the rights of the present contestants, inasmuch as the document Exh. 1 is merely a contract to sell, to which the provisions of article 1504 do not apply. (Caridad Estates v. Santero, 71 Phil. 114; Aldea v. Inquimboy, L-1601, May 29, 1950 (47 O. Gaz. Supp. 12, p. 131); cf. Manila Racing Club v. Manila Jockey Club, 40 O. Gaz. 3rd Supp. No. 7 p. 88.)
Wherefore having found no error in the appealed decision, we hereby affirm it with costs against appellant. So ordered.
Paras, Pablo, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.
J.B.L. Reyes, J., took no part.