[ G.R. No. 10907. January 29, 1916 ] 33 Phil. 339
[ G.R. No. 10907. January 29, 1916 ]
ONG JANG CHUAN, PLAINTIFF AND APPELLEE, VS. WISE & CO. (LTD.), DEFENDANT AND APPELLANT. D E C I S I O N
TRENT, J.:
An appeal from a judgment of the Court of First Instance of Manila condemning the defendant to pay the plaintiff the sum of P1,237.50, together with interest and costs, as damages for a breach of contract.
The contract which forms the basis of this action reads:
“Between Messrs. Wise & Co. (Ltd.), Manila, and Mr. Ong Jang Chuan, Manila.
“We, Wise & Co. (Ltd.), have sold to Mr. Ong Jang Chuan the following goods, on this 29th day of July, 1914: “One thousand (1,000) sacks of flour, ‘Mano’ brand, at the net price of P11.05 (eleven pesos and five centavos) per barrel, the expenses of transportation from the Binondo Canal to be borne by the purchaser, 500 sacks to be delivered in September and 500 in October, which we bind ourselves to deliver * * * for which we shall receive a commission of * * * per cent of the total amount. Payment of the goods mentioned shall be made within 30 days counted from the date of delivery, and interest at the rate of * * * per annum on any unpaid amount that may still be due after the * * * days mentioned.”
The pertinent facts, as found by the trial court, are these:
“It has been established by a preponderance of evidence that the reason for the nonfulfilment, on the part of Wise & Co., of the contract made with the plaintiff, was that the ‘Mano’ brand of flour which the defendant bound itself to deliver during the months of September and October had to come from Australia, and at the time the contract was executed Wise & Co. did not have a sufficient stock of the said brand of flour; and that, as the government of Australia prohibited the exportation of (lour, because of the scarcity of grain in that country, due to the war that had been declared between Great Britain, of which Australia is an integral part, and the German Empire, it was impossible for the importers to supply Wise & Co. with a sufficient quantity of flour to enable the latter, in turn, to serve its customers.”
It is urged that the trial court erred (1) in holding that the contract above set forth was an agreement to sell and not a perfected sale, (2) in not finding that the noncompliance of the contract was due to a fortuitous event, and (3) in condemning the defendant to pay to the plaintiff the sum of P1,237.50.
In the argument, as appears in defendant’s printed brief filed in this court, the third alleged error is made dependent upon the result of the first and second, or, in other words, it is not insisted that the judgment is excessive of that the plaintiff has not established that he is entitled to P1,237.50, in case he is entitled to any amount. Neither does counsel contend that the defendant is relieved from all liability for the noncompliance with the contract on account of the order of the Australian government prohibiting the exportation of flour if the sale is not a perfected one. As thus presented, our inquiry is limited to the determination of the question whether or not the contract and the facts found show a perfected sale.
In the case of Yu Tek & Co. vs. Gonzalez (29 Phil. Rep., 384), we said:
“This court has consistently held that there is a perfected sale with regard to the ’thing’ whenever the article of sale has been physically segregated from all other articles.”
In the case under consideration, the undertaking of the defendant was to sell to the plaintiff 1,000 sacks of “Mano” flour at P11.05 per barrel, 500 sacks to be delivered in September and 500 in October. There was no delivery, at all under the contract. If called upon to designate the article sold, the defendant could only say that it was “Mano” flour. There was no appropriation of any particular lot of flour. The flour mentioned in the contract was not “physically segregated from all other articles.” In fact, the defendant did not have in its possession in Manila, at the time the contract was entered into, the 1,000 sacks of flour which it agreed, to deliver in September and October. It is therefore clear that under the rule laid down in the case of Yu Tek & Co., supra, and the cases cited in that opinion, the sale here in question was not a perfected one.
For the foregoing reasons, the judgment appealed from is affirmed, with costs against the appellant. So ordered.
Arellano, C. J., Torres, and Carson, JJ., concur. Moreland, J., see concurring opinion.