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In the case of Cayce vs. Curtis (Dallam's Decisions Texas Reports, 403), it Manresa, commenting upon article 1262 of the Civil Code, says:
appears that the legislature, at a time when that State still retained to a large
extent the Spanish substantive civil law, enacted a statue in which the word The essence of consent is the agreement of the parties concerning
bonds is used. In litigation involving the construction of that statute, one of the that which is to constitute the contract . . . . The forms of this
parties contended that the work bond should be given the technical meaning agreement may vary according to whether it is expressed verbally or
which it had in the English Common Law. The court rejected this contention in writing, by words or by acts. Leaving the other differences for
saying consideration hereafter, we will only refer now to those which exist
between express consent and implied consent . . . . It is
On the first point it is urged by counsel for the appellant that the word bond unquestionable that implied consentmanifested by act or conduct,
used in the statute being a common law term, we must refer to the common produces a contract. . . .
law for its legal signification; and that by that law no instrument is a bond which
is not under seal. The truth of the proposition that sealing is an absolute If it were necessary to have recourse to the English common law for the
requisite to the validity of a bond at common law is readily admitted; but the purpose of ascertaining the meaning of the phrase under consideration, we
applicability of that rule of the case under consideration is not perceived. This could find many decisions which gave it the same meaning as that for which I
bond was taken at a time when the common law afforded no rule of decision contend.
or practice in this country, and consequently that law cannot be legitimately
resorted to, even for the purpose for which it is invoked by the counsel for the
An implied contract is where one party receives benefits from another
appellant, unless it be shown that the civil law had not term of similar import
party, under such circumstances that the law presume a promise on
for we regard it as a correct rule of construction, that where technical terms
the part of the party benefited to pay a reasonable price for the same.
are used in a statute they are to be referred for their signification to terms f
(Jones vs. Tucker [Del.], 84 Atlantic, 1012.)
similar import in the system of laws which prevails in the country where the
statues is passed, and not to another system which is entirely foreign t the
whole system of municipal regulations by which that country is governed. It is true that English courts have extended the concept of the term contract to
(Martin's Reports, vol. 3, 185; 7 Martin [N. S.], 162.)" include certain obligations arisingex lege without consent, express or implied.
True contracts created by implied consent are designated in the English
common law as contracts implied in the fact, while the so-called contracts in
Consequently, I believe that in the interpretation of phase "contract, express which the consent is a fiction of law are called contracts implied by law. But is
or implied," we should apply the rules of our own substantive law. The phrase
evident that the latter are not real contracts. They have been called contract
in itself offers no difficulty. The concept of the contract, under the Civil Code,
arbitrarily by the courts of England, and those of the Untied States in which the
as a legal relation of exclusively consensual origin, offers no difficulty. Nor is
English common law is in force, in order that certain actions arising ex lege
any difficulty encountered in the gramatical sense of the words express and
may be enforced by the action of assumpsit. In the rigid formulism of the
"implied". Express according to the New International Dictionary is that which English common law the substantive right had to be accommodated to the
is directly and distinctly stated; expressed, not merely implied or left to form of action. As is stated in the monograph on the action of assumpsit in
interference. Therefore, a contract entered into by means of letters, in which
Ruling Case Law. (volume 2, 743)
the offer and the acceptance have been manifested by appropriate words,
would be an "express contract." The word "imply" according to the same
dictionary, is to involve in substance or essence, or by fair inference, or by In theory it wan action to recover for the nonperformance f simple
construction of law, when not expressly stated in words or signs; to contain by contracts, and the formula and proceedings were constructed and
implication to include virtually. carried on accordingly. . . . From the reign of Elizabeth this action has
been extended to almost every case where an obligation arises from
natural reason, . . . and it is now maintained in many cases which its
Therefore, if I enter a tailor shop and order a suit of clothes, although nothing principles do not comprehend and where fictions and intendments are
is said regarding payment, it is an inference, both logical and legal, from my
resorted to, to fit the actual cause of action to the theory of the remedy.
act that is my intention to pay the reasonable value of the garments. The It is thus sanctioned where there has been no . . . real contract, but
where some duty is deemed sufficient to justify the court in imputing in the present case never promised, him in the gambling game in question, his
the promise to perform its, and hence in bending the transaction to obligation to restor the amounts won, imposed by the law, is no contractual,
the form of action. but purely extra-contractual and therefore the action brought not being one
arising upon contract express or implied, the plaintiff is not entitled to a
In the ancient English common law procedure the form of the action was preliminary attachment upon the averment that the defendant is about to
regarded as being much more important than the substantive right to be depart from the Philippine Islands with with intent t defraud his creditors, no
enforced. If no form of action was found in which the facts would fit, so much averment being made in the compliant or in the affidavit that the defendant has
the worse for the facts! to avoid the injustices to which this condition of affairs removed or disposed of his property, or is about to depart with intent to defraud
gave rise, the judges invented those fictions which permitted them to preserve his creditors, so as to bring the case within the terms of the fifth paragraph of
the appearance of conservatism and change the law without expressly section 412.
admitting that they were doing so. The indispensable averment, that they were
doing so. The indispensable avernment without which the action of assumpsit I am unable to agree with the contention of the application (Brief, p. 39) here
would not lie, was that the defendant promised to pay plaintiff the amount that the phase in question should be interpreted in such a way as to include all
demanded. (Sector vs. Holmes, 17 Vs., 566.) In true contracts, whether obligations, whether arising from consent or ex lege, because that is
express or implied, this promise in fact exists. In obligations arising ex equivalent to eliminating all distinction between the first and the fifth
lege there is no such promise, and therefore the action of assumpsit could not paragraphs by practically striking out the first two lines of paragraph one. The
be maintained, and therefore the action of assumpsit could not be maintained, Legislature has deliberately established this distinction, and while we may be
although by reason of its relative simplicity it was one of the most favored forms unable to see any reason why it should have been made, it is our duty to apply
of action. In order to permit the litigant to make use of this form of action for and interpret the law, and we are not authorized under the guise of
the enforcement of ascertain classes of obligations arising ex lege, the judges interpretation to virtually repeal part of the statute.
invented the fiction of the promise of the defendant to pay the amount of the
obligation, and as this fictitious promise give the appearance of consensuality Nor can it be said that the relations between the parties litigant constitute a
to the legal relations of the parties, the name of implied contract is given to that quasi-contract. In the first place, quasi- contracts are "lawful and purely
class of extra-contractual obligations enforcible by the action of assumpsit. voluntary acts by which the authors thereof become obligated in favor of a third
person. . . ." The act which gave rise to the obligation ex lege relied upon by
Now, it is not be supposed that it was the intention of the Legislature in making the plaintiff in the court below isillicit an unlawful gambling game. In the
use in the first paragraph of article 412 of the phrase contract, express or second place, the first paragraph of section 412 of the Code of Civil Procedure
implied to corrupt the logical simplicity of our concept of obligations by does not authorize an attachment in actions arising out of quasi contracts, but
importing into our law the antiquated fictions of the mediaeval English common only in actions arising out of contract, express or implied.
law. If one of the concepts of the term "implied contract" in the English common
law, namely, that in which consent is presume from the conduct of the debtor, I am therefore of the opinion that the court below was without jurisdiction to
harmonizes with the concept of the contract in our law, why should we reject issue that writ of attachment and that the writ should be declared null and void.
that meaning and hold that the Legislature intended to use this phrase in the
foreign and illogical sense of a contract arising without consent? This is a civil Avancea, J., concurs.
law country. why should we be compelled to study the fictions of the ancient
English common law, in order to be informed as to the meaning of the word
contract in the law of the Philippine Islands? Much more reasonable to my G.R. No. L-4089 January 12, 1909
mind was the conclusion of the Texas court, under similar circumstances, to
the effect to be referred for their signification to terms of similar import in the ARTURO PELAYO, plaintiff-appellant,
system of laws which prevails in the country where the statue is passed." vs.
(Cayce vs. Curtis, supra.) MARCELO LAURON, ET AL., defendants-appellees.
My conclusion is that the phase contract, express or implied should be J.H. Junquera, for appellant.
interpreted in the grammatical sense of the words and limited to true contracts, Filemon Sotto, for appellee.
consensual obligations arising from consent, whether expressed in words,
writing or signs, or presumed from conduct. As it is evident that the defendant TORRES, J.:
On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, Assuming that it is a real fact of knowledge by the defendants that the plaintiff,
filed a complaint against Marcelo Lauron and Juana Abella setting forth that by virtue of having been sent for by the former, attended a physician and
on or about the 13th of October of said year, at night, the plaintiff was called rendered professional services to a daughter-in-law of the said defendants
to the house of the defendants, situated in San Nicolas, and that upon arrival during a difficult and laborious childbirth, in order to decide the claim of the
he was requested by them to render medical assistance to their daughter-in- said physician regarding the recovery of his fees, it becomes necessary to
law who was about to give birth to a child; that therefore, and after consultation decide who is bound to pay the bill, whether the father and mother-in-law of
with the attending physician, Dr. Escao, it was found necessary, on account the patient, or the husband of the latter.
of the difficult birth, to remove the fetus by means of forceps which operation
was performed by the plaintiff, who also had to remove the afterbirth, in which According to article 1089 of the Civil Code, obligations are created by law, by
services he was occupied until the following morning, and that afterwards, on contracts, by quasi-contracts, and by illicit acts and omissions or by those in
the same day, he visited the patient several times; that the just and equitable which any kind of fault or negligence occurs.
value of the services rendered by him was P500, which the defendants refuse
to pay without alleging any good reason therefor; that for said reason he
Obligations arising from law are not presumed. Those expressly determined in
prayed that the judgment be entered in his favor as against the defendants, or the code or in special laws, etc., are the only demandable ones. Obligations
any of them, for the sum of P500 and costs, together with any other relief that arising from contracts have legal force between the contracting parties and
might be deemed proper.
must be fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.)
In answer to the complaint counsel for the defendants denied all of the
The rendering of medical assistance in case of illness is comprised among the
allegation therein contained and alleged as a special defense, that their mutual obligations to which the spouses are bound by way of mutual support.
daughter-in-law had died in consequence of the said childbirth, and that when (Arts. 142 and 143.)
she was alive she lived with her husband independently and in a separate
house without any relation whatever with them, and that, if on the day when
she gave birth she was in the house of the defendants, her stay their was If every obligation consists in giving, doing or not doing something (art. 1088),
accidental and due to fortuitous circumstances; therefore, he prayed that the and spouses are mutually bound to support each other, there can be no
defendants be absolved of the complaint with costs against the plaintiff. question but that, when either of them by reason of illness should be in need
of medical assistance, the other is under the unavoidable obligation to furnish
the necessary services of a physician in order that health may be restored,
The plaintiff demurred to the above answer, and the court below sustained the
and he or she may be freed from the sickness by which life is jeopardized; the
demurrer, directing the defendants, on the 23rd of January, 1907, to amend
party bound to furnish such support is therefore liable for all expenses,
their answer. In compliance with this order the defendants presented, on the including the fees of the medical expert for his professional services. This
same date, their amended answer, denying each and every one of the liability originates from the above-cited mutual obligation which the law has
allegations contained in the complaint, and requesting that the same be
expressly established between the married couple.
dismissed with costs.
In the face of the above legal precepts it is unquestionable that the person
As a result of the evidence adduced by both parties, judgment was entered by bound to pay the fees due to the plaintiff for the professional services that he
the court below on the 5th of April, 1907, whereby the defendants were rendered to the daughter-in-law of the defendants during her childbirth, is the
absolved from the former complaint, on account of the lack of sufficient
husband of the patient and not her father and mother- in-law, the defendants
evidence to establish a right of action against the defendants, with costs
herein. The fact that it was not the husband who called the plaintiff and
against the plaintiff, who excepted to the said judgment and in addition moved
requested his assistance for his wife is no bar to the fulfillment of the said
for a new trial on the ground that the judgment was contrary to law; the motion
obligation, as the defendants, in view of the imminent danger, to which the life
was overruled and the plaintiff excepted and in due course presented the of the patient was at that moment exposed, considered that medical
corresponding bill of exceptions. The motion of the defendants requesting that assistance was urgently needed, and the obligation of the husband to furnish
the declaration contained in the judgment that the defendants had demanded
his wife in the indispensable services of a physician at such critical moments
therefrom, for the reason that, according to the evidence, no such request had
is specially established by the law, as has been seen, and compliance
been made, was also denied, and to the decision the defendants excepted.
therewith is unavoidable; therefore, the plaintiff, who believes that he is entitled
to recover his fees, must direct his action against the husband who is under
obligation to furnish medical assistance to his lawful wife in such an ABELARDO BAUTISTA and ROBERTO TAN TING, petitioners-appellees,
emergency. vs.
FEDERICO O. BORROMEO, INC., HONORABLE CESAR C. CRUZ, Judge
From the foregoing it may readily be understood that it was improper to have of the Municipal Court of Mandaluyong, Rizal and JESUS BAUTISTA,
brought an action against the defendants simply because they were the parties Deputy Sheriff of Manila as Special Sheriff, respondents-appellants.
who called the plaintiff and requested him to assist the patient during her
difficult confinement, and also, possibly, because they were her father and Dante O. Tinga and Leopoldo V. Repotente, Jr. for petitioners-appellees.
mother-in-law and the sickness occurred in their house. The defendants were Modesto S. Mendoza for respondents-appellants.
not, nor are they now, under any obligation by virtue of any legal provision, to
pay the fees claimed, nor in consequence of any contract entered into between SANCHEZ, J.:
them and the plaintiff from which such obligation might have arisen.
Respondents-appellants seek to overturn the decision of the Court of First
In applying the provisions of the Civil Code in an action for support, the Instance of Rizal of January 6, 1966 granting petitioners-appellees' petition for
supreme court of Spain, while recognizing the validity and efficiency of a relief from judgment, setting aside the July 23, 1965 decision of the Municipal
contract to furnish support wherein a person bound himself to support another Court of Mandaluyong, Rizal, in Civil Case 1365 and ordering a new trial.
who was not his relative, established the rule that the law does impose the
obligation to pay for the support of a stranger, but as the liability arose out of
The background facts are as follows:
a contract, the stipulations of the agreement must be held. (Decision of May
11, 1897.)
On September 15, 1964, the Ford truck of petitioner Roberto Tan Ting driven
by Abelardo Bautista, the other petitioner, and the Volkswagen delivery panel
Within the meaning of the law, the father and mother-in-law are strangers with
truck owned by respondent Federico O. Borromeo, Inc. (hereinafter called
respect to the obligation that devolves upon the husband to provide support,
Borromeo) were involved in a traffic accident along Epifanio de los Santos
among which is the furnishing of medical assistance to his wife at the time of Avenue. In said traffic accident, Quintin Delgado, a helper in Borromeo's
her confinement; and, on the other hand, it does not appear that a contract delivery panel truck, sustained injuries which resulted in his instantaneous
existed between the defendants and the plaintiff physician, for which reason it
death. Borromeo had to pay Delgado's widow the sum of P4,444 representing
is obvious that the former can not be compelled to pay fees which they are
the compensation (death benefit) and funeral expenses due Delgado under
under no liability to pay because it does not appear that they consented to bind
the Workmen's Compensation Act.
themselves.
On June 17, 1965, upon the averment that the said vehicular accident was
The foregoing suffices to demonstrate that the first and second errors assigned
caused by petitioners' negligence, Borromeo started suit in the Municipal Court
to the judgment below are unfounded, because, if the plaintiff has no right of
of Mandaluyong, Rizal to recover from petitioners the compensation and
action against the defendants, it is needless to declare whether or not the use
funeral expenses it paid to the widow of Quintin Delgado.1
of forceps is a surgical operation.
At the scheduled hearing of the case on July 23, 1965, neither petitioners nor
Therefore, in view of the consideration hereinbefore set forth, it is our opinion
their counsel appeared. Borromeo was thus allowed to present its evidence ex
that the judgment appealed from should be affirmed with the costs against the
parte. On the same day, July 23, 1965, the municipal court rendered judgment
appellant. So ordered.
in favor of Borromeo and against the petitioners in the principal sum of P4,444,
and P500 attorney's fees, and costs. Respondents aver that this judgment has
Mapa and Tracey, JJ., concur. been executed and satisfied.
Arellano, C.J., and Carson, J., concurs in the result.
Willard, J., dissents.
On August 6, 1965, petitioners received copy of the municipal court's decision.
A move to reconsider failed. Hence, this appeal. Their counsel, Atty. Leopoldo V. Repotente, Jr., explains his failure to attend
the hearing in this wise "he relied on the assurance of his associate, Atty.
We vote to reverse the lower court's judgment for the following reasons: Lucenito N. Tagle, that the latter will attend to the case for him since on that
same date he (Atty. Repotente) had another case before the City Court of
Quezon City." In his sworn statement, Atty. Tagle in turn stated that he was
1. The petition for relief from judgment under Rule 38 of the Rules of Court is
unable to attend the hearing despite his promise to do so because, in his own
unavailable to petitioners.
words, "when I transferred to my new office at A & T Building, Escolta, Manila,
the record of this case was misplaced, mislaid or otherwise lost by my helpers
A basic precept is that when another remedy at law is open to a party, he and was not among those turned over to my possession" and "it was only a
cannot sue out a petition for relief under Rule 38. 3 Thus, a petition for relief is few days after the date of hearing on July 23, 1965, that I found the record of
not a substitute for appeal. It has been held that where a defendant could have this case in one of the drawers of my table in my former office and it was only
appealed but did not appeal from the decision of the inferior court to the then that I realized my failure to attend the hearing on July 23, 1965, ... ."
Court of First Instance but instead filed a petition for relief, his petition was
inappropriate as it "would amount to reviving his right to appeal which he had
irretrievably lost through the gross inaction of his counsel."4
We cannot view such negligence of petitioners' two attorneys as excusable. It is evident from the foregoing that "if compensation is claimed and awarded,
There was no plausible reason for Repotente to entrust the hearing of the case and the employer pays it, the employer becomes subrogated to and acquires,
to another lawyer. His lame excuse was that he requested Tagle to attend the by operation of law, the worker's rights against the tortfeasor."9
hearing of said case for him because he had another hearing at the City Court
of Quezon City. This is unworthy of serious consideration. For, as respondents No need then there is to establish any contractual relationship between Quintin
aver and this is not denied by petitioners the hearing of July 23, 1965 Delgado and herein petitioners. Indeed, there is none. The cause of action of
before the municipal court was set in open court during the initial date of respondent corporation is one which does not spring from a creditor-debtor
hearing held on July 1, 1965 after Atty. Repotente consulted his calendar. relationship. It arises by virtue of its subrogation to the right of Quintin Delgado
When Repotente agreed in open court to set the trial of the case for July 23, to sue the guilty party. Such subrogation is sanctioned by the Workmen's
1965, it may very well be presumed that his other case in Quezon City was not Compensation Law aforesaid. It is as a subrogee to the rights of its deceased
yet calendared for hearing. He could not have, in good faith, agreed to set the employee, Quintin Delgado, that Borromeo filed a suit against petitioners in
case for hearing on the day on which he had another previously scheduled the Municipal Court of Mandaluyong, Rizal. 10
trial. Further, he failed to notify his clients of the hearing set for July 23, 1965;
they also failed to appear thereat. Certainly, Repotentes' inadvertence cannot FOR THE REASONS GIVEN, the appealed decision of January 6, 1966 under
be labeled as excusable. review is hereby reversed and the petition for relief is hereby dismissed.
Nor may Atty. Tagle offer as excuse the fact that the record of the case "was
Costs against petitioners-appellees. So ordered.
misplaced, mislaid or otherwise lost." This is a stereotyped excuse. It is
resorted to by lawyers in order to win new trial of the case and thereby move
farther away the day of reckoning. To be remembered is that the life of each Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
case is in its record. If the record of the case was misplaced, mislaid or lost, Fernando, Teehankee and Barredo, JJ.,concur.
he should have nevertheless attended the scheduled hearing and requested
for a postponement by reason thereof. But he did not. Appropriate it is to recall
here that a prudent lawyer keeps a separate record or diary of hearings of
cases he handles and of his professional engagements. A lawyer's schedules
of hearings intended as reminder are not noted by the lawyer in his record
of the case. That would be useless for the purpose.
There is then no excusable negligence to which the petition for relief can cling.