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VOL. 359, JUNE 20, 2001 91

Dino vs. Court of Appeals
*
G.R. No. 113564. June 20, 2001.

INOCENCIA YU DINO and her HUSBAND doing business under

the trade name “CANDY CLAIRE FASHION GARMENTS,”
petitioners, vs. COURT OF APPEALS and ROMAN SIO, doing
business under the name “UNIVERSAL TOY MASTER
MANUFACTUR-ING,” respondents.

Civil Law; Contracts; The contract executed by and between the

petitioners and the respondents was a contract for a piece of work.—As this
Court ruled in Engineering & Machinery Corporation v. Court of Appeals,
et al., “a contract for a piece of work, labor and materials may be
distinguished from a contract of sale by the inquiry as to whether the thing
transferred is one not in existence and which would never have existed but
for the order of the person desiring it. In such case, the contract is one for a
piece of work, not a sale. On the other hand, if the thing subject of the
contract would have existed and been the subject of a sale to some other

_______________

* FIRST DIVISION.

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92 SUPREME COURT REPORTS ANNOTATED

Dino vs. Court of Appeals

person even if the order had not been given then the contract is one of sale.”
The contract between the petitioners and respondent stipulated that
respondent would manufacture upon order of the petitioners 20,000 pieces
of vinyl frogs and 20,000 pieces of vinyl mooseheads according to the
samples specified and approved by the petitioners. Respondent Sio did not
ordinarily manufacture these products, but only upon order of the petitioners

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and at the price agreed upon. Clearly, the contract executed by and between
the petitioners and the respondent was a contract for a piece of work.
Remedial Law; Actions; Prescription; As a rule, the defense of
prescription cannot be raised for the first time on appeal; Trial courts have
authority and discretion to dismiss an action on the ground of prescription
when the parties’ pleadings or other facts on record show it to be indeed
time-barred,—As a rule, the defense of prescription cannot be raised for the
first time on appeal. Thus, we held in Ramos v. Osorio, viz.: “It is settled
law in this jurisdiction that the defense of prescription is waivable, and that
if it was not raised as a defense in the trial court, it cannot be considered on
appeal, the general rule being that the appellate court is not authorized to
consider and resolve any question not properly raised in the lower court
(Subido vs. Lacson, 55 O.G. 8281, 8285; Moran, Comments on the Rules of
Court, Vol. I, p. 784, 1947 Edition).” However, this is not a hard and fast
rule. In Gicano v. Gegato, we held: “. . . (T)rial courts have authority and
discretion to dismiss an action on the ground of prescription when the
parties’ pleadings or other facts on record show it to be indeed time-barred;
(Francisco v. Robles, Feb. 15, 1954; Sison v. McQuaid, 50 O.G. 97;
Bambao v. Lednicky, Jan. 28, 1961; Cordova v. Cordova, Jan. 14, 1958;
Convets, Inc. v. NDC, Feb. 28, 1958; 32 SCRA 529; Sinaon v. Sorongan,
136 SCRA 408); and it may do so on the basis of a motion to dismiss (Sec.
1, f, Rule 16, Rules of Court), or an answer which sets up such ground as an
affirmative defense (Sec. 5, Rule 16), or even if the ground is alleged after
judgment on the merits, as in a motion for reconsideration (Ferrer v. Ericta,
84 SCRA 705); or even if the defense has not been asserted at all, as where
no statement thereof is found in the pleadings (Garcia v. Mathis, 100 SCRA
250; PNB v. Pacific Commission House, 27 SCRA 766; Chua Lamco v.
Dioso, et al., 97 Phil. 821); or where a defendant has been declared in
default (PNB v. Perez, 16 SCRA 270). What is essential only, to repeat, is
that the facts demonstrating the lapse of the prescriptive period be otherwise
sufficiently and satisfactorily apparent on the record; either in the averments
of the plaintiffs complaint, or otherwise established by the evidence.”
(emphasis supplied)

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Dino vs. Court of Appeals

Same; Same; Same; When the plaintiffs own complaint shows clearly
that the action has prescribed, the action may be dismissed even if the
defense of prescription was not invoked by the defendant.—In Aldovino, et
al. v. Alunan, et al., the Court en banc reiterated the Garcia v. Mathis
doctrine cited in the Gicano case that when the plaintiff’s own complaint
shows clearly that the action has prescribed, the action may be dismissed
even if the defense of prescription was not invoked by the defendant. It is
apparent in the records that respondent made the last delivery of vinyl
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products to the petitioners on September 28, 1988. Petitioners admit this in

their Memorandum submitted to the trial court and reiterate it in their
Petition for Review. It is also apparent in the Complaint that petitioners
instituted their action on July 24, 1989. The issue for resolution is whether
or not the respondent Court of Appeals could dismiss the petitioners’ action
if the defense of prescription was raised for the first time on appeal but is
apparent in the records.
Same; Same; Same; Court’s application of the Osorio and Gicano
doctrines to the case at bar is confirmed and now enshrined in Rule 9, Sec.
1 of the 1997 Rules of Civil Procedure.—This Court’s application of the
Osorio and Gicano doctrines to the case at bar is confirmed and now
enshrined in Rule 9, Sec. 1 of the 1997 Rules of Civil Procedure, viz.:
“Section 1. Defense and objections not pleaded.—Defenses and objections
not pleaded whether in a motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings that the court has no
jurisdiction over the subject matter, that there is another action pending
between the same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss the
claim.” (Emphasis supplied)

PETITION for review on certiorari of a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

Abdul & Maningas Law Offices for petitioners.
Julian S. Yap for private respondent.

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94 SUPREME COURT REPORTS ANNOTATED

Dino vs. Court of Appeals

**
DECISION

PUNO, J.:

Though people say, “better late than never,” the law frowns upon
those who assert their rights past the eleventh hour. For failing to
timely institute their action, the petitioners are forever barred from
claiming a sum of money from the respondent.
This is a petition for review on certiorari to annul and set aside
the amended decision of the respondent court dated January 24,
1994 reversing its April 30, 1993 decision and dismissing the
plaintiff-petitioners’ Complaint on the ground of prescription.
The following undisputed facts gave rise to the case at bar:

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Petitioners spouses Dino, doing business under the trade name

“Candy Claire Fashion Garment” 1
are engaged in the business of
manufacturing and selling shirts. Respondent Sio is part owner and
general manager of a manufacturing corporation doing business2
under the trade name “Universal Toy Master Manufacturing.”
Petitioners and respondent Sio entered into a contract whereby the
latter would manufacture for the petitioners 20,000 pieces of vinyl
frogs and 20,000 pieces of vinyl mooseheads at P7.00 per piece in
accordance with the sample approved by the petitioners. These frogs
and mooseheads were3 to be attached to the shirts petitioners would
manufacture and sell.
Respondent Sio delivered in several installments the 40,000
pieces of frogs and mooseheads. The last delivery was made on4
September 28, 1988. Petitioner fully paid the agreed price.
Subsequently, petitioners returned to respondent 29,772 pieces of
frogs

_______________

**This case was transferred to the ponente on March 14, 2001 pursuant to
Resolution in A.M. No. 00-9-03-SC—Re: Creation of Special Committee on Case
Backlog dated February 27, 2001.
1 Rollo, p. 20; Complaint, p. 1.
2 TSN, April 27, 1990, pp. 3-4.
3 Rollo, p. 37; Memorandum for the Plaintiff in the RTC, P. 1; Exhibit “1.”
4 Rollo, pp. 13, 37-38; Petition for Review, p. 13; Original Records, pp. 71-72;
Memorandum for the Plaintiff in the Regional Trial Court, pp. 1-2; TSN, Venerando
dela Cruz, September 3, 1990, p. 27.

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Dino vs. Court of Appeals
5
and mooseheads for failing to comply with the approved sample.
The return was made on different dates: 6
the initial one on December
12, 1988
7
consisting of 1,720 pieces, 8 the second on January 11,
1989, and the last on January 17, 1989.
Petitioners then demanded from the respondent a refund of the
purchase price of the returned goods
9
in the amount of P208,404.00.
As respondent Sio refused to pay, petitioners filed on July 24, 1989
an action for collection of a sum of money in the Regional Trial
Court of Manila, Branch 38.
The trial court ruled in favor of the petitioners, viz.:

“WHEREFORE, judgment is hereby rendered in favor of the plaintiffs

Vicente and Inocencia Dino and against defendant Toy Master
Manufacturing, Inc. ordering the latter to pay the former:

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1. The amount of Two Hundred Eight Thousand Four Hundred Four

(P208,404.00) Pesos with legal interest thereon from July 5, 1989,
until fully paid; and
2. The amount of Twenty Thousand (P20,000.00) Pesos as attorney’s
fees and the costs of this suit.

The10 counterclaim on the other hand is hereby dismissed for lack of

merit.”

Respondent Sio sought recourse in the Court of Appeals. In its April

30, 1993 decision, the appellate court affirmed the trial court
decision. Respondent then filed a Motion for Reconsideration and a
Supplemental Motion for Reconsideration alleging therein that the
petitioners’ action for collection of sum of money based on a breach
of warranty had already prescribed. On January 24, 1994, the
respondent court reversed its decision and dismissed petitioners’
Complaint for having been filed beyond the prescriptive period. The
amended decision read in part, viz.

_______________

5 Rollo, p. 31; Plaintiffs Pre-trial Brief, p. 1.

6 Exhibit “F.”
7 Exhibit “F-1.”
8 Exhibit “F-2.”
9 Rollo, p. 38; Memorandum for the Plaintiff, Regional Trial Court, p. 2.
10 Original Records, p. 105.

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Dino vs. Court of Appeals

“Even if there is failure to raise the affirmative defense of prescription in a

motion to dismiss or in an appropriate pleading (answer, amended or
supplemental answer) and an amendment would no longer be feasible, still
prescription, if apparent on the face of the complaint may be favorably
considered (Spouses Matias B. Aznar, III, et al. vs. Hon. Juanito A. Bernad,
etc., supra, G.R. 81190, May 9, 1988). The rule in Gicano vs. Gegato
(supra) was reiterated in Severo v. Court of Appeals, (G.R. No. 84051, May
19, 1989).
WHEREFORE the Motion for Reconsideration is granted. The judgment
of this Court is set aside and judgment is hereby rendered REVERSING
11
the
judgment of the trial court and dismissing plaintiff’s complaint.”

Hence, this petition with the following assignment of errors:

I.

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The respondent Court of Appeals seriously erred in dismissing the

complaint of the Petitioners on the ground that the action had prescribed.

II.

The respondent Court of Appeals seriously erred in holding that the

defense of prescription would still be considered despite the fact that it was
not raised in the answer, if apparent on the face of the complaint.

We first determine the nature of the action filed in the trial court to
resolve the issue of prescription. Petitioners claim that the
Complaint they filed in the trial court on July 24, 1989 was one for
the collection of a sum of money. Respondent contends that it was
an action for breach of warranty as the sum of money petitioners
sought to collect was actually a refund of the purchase price they
paid for the alleged defective goods they bought from the
respondent.
We uphold the respondent’s contention.
The following provisions of the New Civil Code are apropos:

“Art. 1467. A contract for the delivery at a certain price of an article which
the vendor in the ordinary course of his business manufactures or procures
for the general market, whether the same is on hand at the time or not, is a
contract of sale, but if the goods are to be manufactured

_______________

11 Rollo, pp. 12-13.

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VOL. 359, JUNE 20, 2001 97

Dino vs. Court of Appeals

specially for the customer and upon his special order, and not for the general
market, it is a contract for a piece of work.”
“Art. 1713. By the contract for a piece of work the contractor binds
himself to execute a piece of work for the employer, in consideration of a
certain price or compensation. The contractor may either employ only his
labor or skill, or also furnish the material.”

As this Court ruled in 12Engineering & Machinery Corporation v.

Court of Appeals, et al., “a contract for a piece of work, labor and
materials may be distinguished from a contract of sale by the inquiry
as to whether the thing transferred is one not in existence and which
would never have existed but for the order of the person desiring it.
In such case, the contract is one for a piece of work, not a sale. On
the other hand, if the thing subject of the contract would have
existed and been the subject of a sale to some other person even13
if
the order had not been given then the contract is one of sale.” The
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contract between the petitioners and respondent stipulated that

respondent would manufacture upon order of the petitioners 20,000
pieces of vinyl frogs and 20,000 pieces of vinyl mooseheads
according to the samples specified and approved by the petitioners.
Respondent Sio did not ordinarily manufacture these products, but14
only upon order of the petitioners and at the price agreed upon.
Clearly, the contract executed by and between the petitioners and the
respondent was a contract for a piece of work. At any rate, whether
the agreement between the parties was one of a contract of sale or a
piece of work, the provisions on warranty of title against hidden
defects in a contract of sale apply to the case at bar, viz.:

“Art. 1714. If the contractor agrees to produce the work from material
furnished by him, he shall deliver the thing produced to the employer and
transfer dominion over the thing. This contract shall be governed by the
following articles as well as by the pertinent provisions on warranty of title
and against hidden defects and the payment of price in a contract of sale.”

_______________

12 252 SCRA 156 (1996).

13 Id., p. 164, footnotes omitted.
14 Rollo, p. 36, Exhibit “1”; TSN, Roman Sio, April 27, 1990, pp. 6-15, 21.

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Dino vs. Court of Appeals

“Art. 1561. The vendor shall be responsible for warranty against the
hidden defects which the thing sold may have, should they render it unfit for
the use for which it is intended, or should they diminish its fitness for such
use to such an extent that, had the vendee been aware thereof, he would not
have acquired it or would have given a lower price for it; but said vendor
shall not be answerable for patent defects or those which may be visible, or
for those which are not visible if the vendee is an expert who, by reason of
his trade or profession, should have known them.”

Petitioners aver that they discovered the defects in respondent’s

products when customers in their (petitioners’) shirt business came
back to them complaining that the frog and moosehead figures
attached to the shirts they bought were torn. Petitioners allege that
they did not readily see these hidden defects upon their acceptance.
A hidden defect is one 15
which is unknown or could not have been
known to the vendee. Petitioners then returned to the respondent
29,772 defective pieces of vinyl products and demanded a refund of
their purchase price in the amount of P208,404.00. Having failed to
collect this amount, they filed an action for collection of a sum of
money.
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Article 1567 provides for the remedies available to the vendee in

case of hidden defects, viz.:

“Art. 1567. In the cases of Articles 1561, 1562, 1564, 1565 and 1566, the
vendee may elect between withdrawing from the contract and demanding a
proportionate reduction of the price, with damages in either case.”

By returning the 29,772 pieces of vinyl products to respondent and

asking for a return of their purchase price, petitioners were in effect
“withdrawing from the contract” as provided in Art. 1567. The
prescriptive period for this kind of action is provided in Art. 1571 of
the New Civil Code, viz.:

“Art. 1571. Actions arising from the provisions of the preceding ten articles
shall be barred after six months from the delivery of the thing sold.”
(Emphasis supplied)

_______________

15 Knecht v. Court of Appeals, et al., 158 SCRA 80 (1988).

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There is no dispute that respondent made the last delivery of the

vinyl products to petitioners on September 28, 1988. It is also settled
that the action to recover the purchase price of the goods16 petitioners
returned to the respondent was filed on July 24, 1989, more than
nine months from the date of last delivery. Petitioners having filed
the action three months after the six-month period for filing actions 17
for breach of warranty against hidden defects stated in Art. 1571,
the appellate court dismissed the action.
Petitioners fault the ruling on the ground that it was too late in
the day for respondent to raise the defense of prescription. The law
then applicable to the case at bar, Rule 9, Sec. 2 of the Rules of
Court, provides:

“Defenses and objections not pleaded either in a motion to dismiss or in the

answer are deemed waived; except the failure to state a cause of action . . .”

Thus, they claim that since the respondent failed to raise the defense
of prescription in a motion to dismiss or in its answer, it is deemed
waived and cannot be raised for the first time on appeal in a motion
for reconsideration of the appellate court’s decision.
As a rule, the defense of prescription cannot be18raised for the first
time on appeal. Thus, we held in Ramos v. Osorio, viz.:

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“It is settled law in this jurisdiction that the defense of prescription is

waivable, and that if it was not raised as a defense in the trial court, it cannot
be considered on appeal, the general rule being that the appellate court is not
authorized to consider and resolve any question not properly raised in the
lower court (Subido vs. Lacson, 55 O.G, 8281, 8285; Moran, Comments on
the Rules of Court, Vol. I, p. 784, 1947 Edition).”
19
However, this is not a hard and fast rule. In Gicano v. Gegato, we
held:

_______________

16 Original Records, p. 1; Complaint, p. 1; TSN, Venerando dela Cruz, September

3, 1990, p. 37; Rollo, p. 13; Petition for Review, p. 7.
17 G.A. Machineries, Inc. v. Yaptinchay, et al., 126 SCRA 78 (1983); Moles v.
IAC, et al., 169 SCRA 777 (1989).
18 38 SCRA 469 (1971).
19 157 SCRA 140 (1988).

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Dino vs. Court of Appeals

“. . . (T)rial courts have authority and discretion to dismiss an action on the

ground of prescription when the parties’ pleadings or other facts on record
show it to be indeed time-barred; (Francisco v. Robles Feb. 15, 1954; Sison
v. McQuaid, 50 O.G. 97; Bambao v. Lednicky, Jan. 28, 1961; Cordova v.
Cordova, Jan. 14, 1958; Convets, Inc. v. NDC, Feb. 28, 1958; 32 SCRA
529; Sinaon v. Sorongan, 136 SCRA 408); and it may do so on the basis of a
motion to dismiss (Sec. 1, f, Rule 16, Rules of Court), or an answer which
sets up such ground as an affirmative defense (Sec. 5, Rule 16), or even if
the ground is alleged after judgment on the merits, as in a motion for
reconsideration (Ferrer v. Ericta, 84 SCRA 705); or even if the defense has
not been asserted at all, as where no statement thereof is found in the
pleadings (Garcia v. Mathis, 100 SCRA 250; PNB v. Pacific Commission
House, 27 SCRA 766; Chua Lamco v. Dioso, et al., 97 Phil. 821); or where
a defendant has been declared in default (PNB v. Perez, 16 SCRA 270).
What is essential only, to repeat, is that the facts demonstrating the lapse of
the prescriptive period be otherwise sufficiently and satisfactorily apparent
on the record; either in the averments of the plaintiffs complaint, or
otherwise established by the evidence.” (emphasis supplied)
20
In Aldovino, et al. v. Alunan, et al., the Court en banc reiterated the
Garcia v. Mathis doctrine cited in the Gicano case that when the
plaintiffs own complaint shows clearly that the action has
prescribed, the action may be dismissed even if the defense of
prescription was not invoked by the defendant.

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It is apparent in the records that respondent made the last

delivery of vinyl products to the petitioners on September 28, 1988.
Petitioners admit this in their Memorandum submitted21
to the trial
court and reiterate it in their Petition for Review. It is also apparent
in the Complaint that petitioners instituted their action on July 24,
1989. The issue for resolution is whether or not the respondent Court
of Appeals could dismiss the petitioners’ action if the defense of
prescription was raised for the first time on appeal but is apparent in
the records.
Following the Gicano doctrine that allows dismissal of an action
on the ground of prescription even after judgment on the merits, or
even if the defense was not raised at all so long as the relevant

_______________

20 230 SCRA 825 (1994).

21 Original Records, p. 76; Memorandum for the Plaintiff in the Regional Trial
Court, p. 6; Rollo, p. 13; Petition for Review, p. 7.

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Dino vs. Court of Appeals

dates are clear on the record, we rule that the action filed by the
petitioners has prescribed. The dates of delivery and institution of
the action are undisputed. There are no new issues of fact arising in
connection with the question of prescription, thus carving out the
case at bar as an exception from the general rule22
that prescription if
not impleaded in the answer is deemed waived.
Even if the defense of prescription was raised for the first time on
appeal in respondent’s Supplemental Motion for Reconsideration of
the appellate court’s decision, this does not militate against the due
process right of the petitioners. On appeal, there was no new issue of
fact that arose in connection with the question of prescription, thus it
cannot be said that petitioners were not given the opportunity to
present evidence in the trial court to meet a factual issue. Equally
important, petitioners had the opportunity to oppose the defense of
prescription in their Opposition to the Supplemental Motion for
Reconsideration filed in the appellate court and in their Petition for
Review in this Court.
This Court’s application of the Osorio and Gicano doctrines to
the case at bar is confirmed and now enshrined in Rule 9, Sec. 1 of
the 1997 Rules of Civil Procedure, viz.:

“Section 1. Defense and objections not pleaded.—Defenses and objections

not pleaded whether in a motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings that the court has no

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jurisdiction over the subject matter, that there is another action pending
between the same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss the
claim.” (Emphasis supplied)

WHEREFORE, the petition is DENIED and the impugned decision

of the Court of Appeals dated January 24, 1994 is AFFIRMED. No
costs.

_______________

22 Luzon Surety Company, Inc. v. IAC, et al., 151 SCRA 652 (1987), citing Ferrer
v. Ericta, 84 SCRA 706 (1978) and Garcia v. Mathis, 100 SCRA 250 (1980).

102

102 SUPREME COURT REPORTS ANNOTATED

La Jolla, Inc. vs. Court of Appeals

SO ORDERED.

Davide, Jr. (C.J., Chairman), Kapunan, Pardo and Ynares-

Santiago, JJ., concur.

Petition denied, judgment affirmed.

Note.—Rights and actions can be lost by the fact of delay and by

the effect of delay. (Ochagabia vs. Court of Appeals, 304 SCRA 587
[1999])

——o0o——

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