[ G.R. No. L-218. August 08, 1946 ] G.R. No. L-218
SECOND DIVISION
[ G.R. No. L-218. August 08, 1946 ]
CELESTINO B. ROQUE, PLAINTIFF-APPELLEE, VS. MERCEDES CAVESTANI DE LOS SANTOS, DEFENDANT-APPELLANT. D E C I S I O N
PADILLA, J.:
As the appellant refused or failed to vacate the upper floor of the house at 834 Calle Bambang, Manila, of which she was the lessee from month to month, notwithstanding notice to do so served upon her in February l945. by an agent of the lessor, the appellee, an action for detainer was brought against her in April following. From a judgment rendered against her, she appealed to the Court of First Instance of Manila. There, she also was ordered to vacate the premises and to pay the stipulated rental at the rate of P30 a month from February until she shall have vacated it, but the court directed that no execution should “be issued against her “before December 31, 1945. From this last judgment again she has appealed.
There being no fixed term for the lease and the rental, agreed upon being monthly, the lease must lie deemed from month to month and may be terminated after each month with due notice served upon the lessee.
The plea that the appellant runs a beauty parlor in the leased premises; that to compel her to move out would cause her damages to the amount of P1,000; that it is difficult for her to find another house where to transfer her parlor, can not defeat the right of the lessor to have the possession of the leased premise s returned to him after due notice served upon the lessee.
Appellant invokes equity. She can not alone invoke it. Appellee can also invoice it to justify the action taken by him against her. The house on Misericordia St. where he lived was burned. That is why he wants her to move out from the only house he owns so that he can move in. Between the appellant and the appellee - the owner of the house - it seems that equity is in the latter’s favor taking into consideration the situation in which both found themselves.
The mercenary and sordid motive ascribed to appellee aside from the fact that there is absolutely no evidence to support it was not pleaded in the court below. It can not and should not be pleaded on appeal.
Default in the payment of rentals was due to appellee’s failure to collect rather than to appellant’s unwillingness or refusal to pay.
Judgment is affirmed, with, costs against the appellant.
Paras, Pablo, Perfecto, and Hilado, JJ., concur.