cases for art abuse of rights

8/6/2019 Cases for Art Abuse of Rights

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Cases for Art 18, 19 & 21 Abuse of Rights

THIRD DIVISION

[G.R. No. 138964. August 9, 2001]

VICENTE RELLOSA, CYNTHIA ORTEGA assisted by husband Roberto Ortega, petitioner, vs. GONZALO PELLOSIS, INESITA MOSTE,

and DANILO RADAM, respondents.

D E C I S I O N

VITUG,J.:

Every person must, in the exercise of his rights and in the performance of his duties, act with justice, gi ve everyone his due, and

observe honesty and good faith.[1] This provision in our law is not just a declaration of principle for it can in itself constitute, whenunduly ignored or violated, a valid source of a cause of action or defense.

The case seeks to reverse the Court of Appeals in not countenancing an attempt to abridge and render inutile a legal right to

contest an adverse ruling of an agency of government.

Respondents were lessees of a parcel of land, owned by one Marta Reyes, located at San Pascual Street, Malate,

Manila. Respondents had built their houses on the land which, over the years, underwent continuous improvements. After the demise

of Marta, the land was inherited by her son Victor Reyes. Sometime in 1986, Victor informed respondents that, for being lessees of the

land for more than twenty (20) years, they would have a right of first refusal to buy the land. Sometime in the early part of 1989,without the knowledge of respondents, the land occupied by them was sold to petitioner Cynthia Ortega who was able to ultimately

secure title to the property in her name.

On 25 May 1989, Cynthia Ortega, filed a petition for co ndemnation, docketed Condemnation Case No. 89 -05-007, with the Office of

the Building Official, City of Manila, of the structures on the land.


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On 31 May 1989, respondents filed with the Regional Trial Court of Manila a suit for the Declaration of Nullity of the Sale,

docketed as Civil Case No. 89-49176, made in favor of petitioner Cynthia Ortega predicated upon their right of first refusal which was

claimed to have been impinged upon the sale of the land to petitioner Ortega without their knowledge.

After due hearing in the condemnation case, the Office of the Building Official issued a resolution, dated 27 November 1989,

ordering the demolition of the houses of respondents. Copies of the resolution were served upon respondents and their counsel on 07

December 1989. The following day, or on 08 December 1989, Cynthia Ortega, together with her father and co-petitioner, Vicente

Rellosa, hired workers to commence the demolition of respondents' houses. Due to the timely intervention of a mobile unit of the

Western Police District, the intended demolition did not take place following talks between petitioner Rellosa and counsel who pleaded

that the demolition be suspended since the order sought to be implemented was not yet final and executory. On 11 December 1989,

respondents filed their appeal contesting the order of the Office of the Building Official. On 12 December 1989, petitioners once again

hired workers and proceeded with the demolition of respondents' houses.

Resultantly, respondents filed Civil Case No. 89-49176 before the Regional Trial Court of Manila, Branch 54, praying that

petitioners be ordered to pay moral and exemplary damages, as well as attorneys fees, for the untimely demolition of the houses. After

trial, the court dismissed the complaint of respondents and instead ordered them to pay petitioners moral damages. On appeal, the

Court of Appeals, on the basis of its findings and conclusions, reversed the decision of the trial court and ordered petitioners to payrespondents the following sums:

"1) Seventy Five Thousand Pesos (P75,000.00) , or Twenty Five Thousand Pesos (P25,000.00) for each appellant, by way of moral

damages;"

"2) Seventy Five Thousand Pesos (P75,000.00), or Twenty Five thousand Pesos (P25,000.00) for each appellant, by w ay of exemplary

damages;"

"3) Fifteen Thousand Pesos (P15,000.00) as and for attorney's fees; and

"4) The costs of suit."[2]

The appellate court ruled:


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At the time petitioners implemented the order of demolition, barely five days after respondents received a copy thereof, the same

was not yet final and executory. The law provided for a fifteen-day appeal period in favor of a party aggrieved by an adverse ruling of

the Office of the Building Official but by the precipitate action of petitioners in demolishing the houses of respondents (prior to the

expiration of the period to appeal), the latter were effectively deprived of this recourse. The fact that the order of demolition was later

affirmed by the Department of Public Works and Highways was of no moment. The action of petitioners up to the point where they

were able to secure an order of demolition was not condemnable but implementing the order unmindful of the right of respondents to

contest the ruling was a different matter and could only be held utterly indefensible.

The Court, however, finds the award of P75,000.00 exemplary damages and another of P75,000.00 moral damages for each

respondent to be rather excessive given the circumstances; the awards must be reduced to the reasonable amounts of P20,000.00

exemplary damages and P20,000.00 moral damages.

WHEREFORE, the assailed decision of the Court of Appeals is MODIFIED by reducing the awards of P75,000.00 exemplary

damages and of P75,000.00 moral damages to each respondent reduced to P20,000.00 exemplary damages and P20,000.00 moral

damages for each respondent. In all other respects, the decision of the appellate court is AFFIRMED. No costs.

SO ORDERED.

Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ.,concur.

Sandoval-Gutierrez, J., on leave.

FIRST DIVISION

[G.R. No. 133107. March 25, 1999]


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RIZAL COMMERCIAL BANKING CORPORATION, Petitioner, v. COURT OF APPEALS and FELIPE LUSTRE, Respondents.

D E C I S I O N

KAPUNAN,J.:

A simple telephone call and an ounce-of good faith on the part of petitioner could have prevented the present controversy.

On March 10, 1993, private respondent Atty. Felipe Lustre purchased a Toyota Corolla from Toyota Shaw, Inc. for which he made a downpayment of P164,620.00, the balance of the pu rchase price to be paid in 24 equal monthly installments. Private respondent thus issued

24 postdated checks for the amount of P14,976.00 each. The first was dated April 10, 1991; subsequent checks were dated every 10th

day of each succeeding month.

To secure the balance, private respondent executed a promissory note[1 and a contract of chattel mortgage[2 over the vehicle in favor of

Toyota Shaw, Inc. The contract of chattel mortgage, in paragraph 11 thereof, provided for an acceleration clause stating that should the

mortgagor default in the payment of any installment, the whole amount remaining unpaid shall become due. In addition, the mor tgagor

shall be liable for 25% of the principal due as liquidated damages.

On March 14, 1991, Toyota Shaw, Inc. assigned all its rights and interests in the chattel mortgage to petitioner Rizal Commercial Banking

Corporation (RCBC).

All the checks dated April 10, 1991 to January 10, 1993 were thereafter encashed and debited by RCBC from private respondent's

account, except for RCBC Check No. 279805 representing the payment for August 10, 1991, which was unsigned. Previously, the amount

represented by RCBC Check No. 279805 was debited from private respondent's account but was later recalled and re-credited to him.

Because of the recall, the last two checks, dated February 10, 1993 and March 10, 1993, were no longer presented for payment. This was

purportedly in conformity with petitioner bank's procedure that once a client's account was forwarded to its account representative, all

remaining checks outstanding as of the date the account was forwarded were no longer presented for payment.

On the theory that respondent defaulted in his payments, the check representing the payment for August 10, 1991 being unsigned,

Petitioner, in a letter dated January 21, 1993, demanded from private respondent the payment of the balance of the debt, including


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liquidated damages. The latter refused, prompting petitioner to file an action for replevin and damages before the Pasay City Regional

Trial Court (RTC). Private respondent, in his Answer, interposed a counterclaim for damages.

After trial, the RTC[3 rendered a decision disposing of the case as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

I. The complaint, for lack of cause of action, is hereby DISMISSED and plaintiff RCBC is hereby ordered,

A. To accept the payment equivalent to the three checks amounting to a total of P44,938.00, without interest

B. To release/cancel the mortgage on the car xxx upon payment of the amount of P44,938.00 without interest.

C. To pay the cost of suit

II. On The Counterclaim

A. Plaintiff RCBC to pay Atty. Lustre the amount of P200,000.00 as moral damages.

B. RCBC to pay P100,000.00 as exemplary damages.

C. RCBC to pay Atty. Obispo P50,000.00 as Attorney's fees. Atty. Lustre is not entitled to any fee for lawyering for himself.

All awards for damages are subject to payment of fees to be assessed by the Clerk of Court, RTC, Pasay City.

SO ORDERED.

On appeal by petitioner, the C ourt of Appeals affirmed the decision of the RTC, thus:

We xxx concur with the trial court's ruling that the Chattel Mortgage contract being a contract of adhesion that is, one wher ein

a party, usually a corporation, prepares the stipulations the contract, while the other party merely affixes his signature or his


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"adhesion" thereto xxx - is to be strictly construed against appellant bank which prepared the form Contract xxx. Hence xxx

paragraph 11 of the Chattel Mortgage contract [containing the acceleratio n clause] should be construed to cover only

deliberate and advertent failure on the part of the mortgagor to pay an amortization as it became due in line with the

consistent holding of the Supreme Court construing obscurities and ambiguities in the restric tive sense against the drafter

thereof xxx in the light of

Article 1377 of the Civil Code.

In the case at bench, plaintiff-appellant's imputation of default to defendant -appellee rested solely on the fact that the 5 th check

issued by appellee xxx was recalled for lack of signature. However, the check was recalled only after the amount covered

thereby had been deducted from defendant -appellee's account, as shown by the testimony of plaintiff's own witness Francisco

Bulatao who was in charge of the preparation of the list and trial balances of bank customers xxx. The "default" was therefore

not a case of failure to pay, the check being sufficiently funded, and which amount was in fact already debitted [sic] from

appellee's account by the appellant bank which s ubsequently re-credited the amount to defendant -appellee's account for lack

of signature. All these actions RCBC did on its own without notifying defendant until sixteen (16) months later when it wrote

its demand letter dated January 21, 1993.

Clearly, appellant bank was remiss in the performance of its functions for it could have easily called the defendant's attention

to the lack of signature on the check and sent the check to, or summoned, the latter to affix his signature. It is also to be noted

that the demand letter contains no explanation as to how defendant -appellee incurred arrearages in the amount of

P66,255.70, which is why defendant-appellee made a protest notation thereon.

Notably, all the other checks issued by the appellee dated subsequent to August 10, 1991 and dated earlier than the demand

letter, were duly encashed. This fact should have already prompted the appellant bank to review its action relative to the

unsigned check. xxx[4

We take exception to the application by both the trial and ap pellate courts of Article 1377 of the Civil Code, which states:

The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity.


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damages. The delay in the performance of the obligation, however, must be either malicious or negligent.[16 Thus, assuming

that private respondent was guilty of delay in the payment of the value of the unsigned check, private respondent cannot be

held liable for damages. There is no imputation, much less evidence, that private respondent acted with malice or negligence

in failing to sign the check. Indeed, we agree with the Court of Appeals' finding that such omission was mere "inadvertence" on

the part of private respondent. Toyota salesperson Jorge Geronimo testified that he even verified whether private respondent

had signed all the checks and in fact returned three or four unsigned checks to him for signing:

Atty. Obispo:

After these receipts were issued, what else did you do about the transaction?

A: During our transaction with Atty. Lustre, I found out when he issued to me the 24 checks, I found out 3 to 4 checks are

unsigned and I asked him to sign these checks.

Atty. Obispo:

What did you do?

A: I asked him to sign the checks. After signing the checks, I reviewed again all the documents, after I reviewed all the

documents and found out that all are completed and the downpayments was completed, we released to him the car.[17

Even when the checks, were delivered to petitioner, it did not object to t he unsigned check. In view of the lack of malice or

negligence on the part of private respondent, petitioner's blind and mechanical invocation of paragraph 11 of the contract of

chattel mortgage was unwarranted.

Petitioners conduct, in the light of the circumstances of this case, can only be described as mercenary. Petitioner had alreadydebited the value of the unsigned check from private respondent's account only to re -credit it much later to him. Thereafter,

petitioner encashed checks subsequently dated, then abruptly refused to encash the last two. More than a year after the date of

the unsigned check, Petitioner, claiming delay and invoking paragraph 11, demanded from private respondent payment of the

value of said check and. that of the last two checks , including liquidated damages. As pointed out by the trial court, this whole


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controversy could have been avoided if only petitioner bothered to call up private respondent and ask him to sign the check.

Good faith not only in compliance with its contractual obligations,[18 but also in observance of the standard in human

relations, for every person "to act with justice, give everyone his due, and observe honesty and good faith."[19 behooved the

bank to do so.

Failing thus, petitioner is liable for damages ca used to private respondent.[20 These include moral damages for the mental

anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation suffered by the latter.[21 The trial

court found that private respondent was

[a] client who has shared transactions for over twenty years with a bank xxx. The shabby treatment given the defendant is

unpardonable since he was put to shame and embarrassment after the case was filed in Court. He is a lawyer in his own right,

married to another member of the bar. He sired children who are all professionals in their chosen field. He is known to the

community of golfers with whom he gravitates. Surely, the filing of the case made defendant feel so bad and bothered.

To deter others from emulating petitioners callous example, we affirm the award of exemplary damages.[22 As exemplary

damages are warranted, so are attorney's fees.[23

We, however, find excessive the amount of damages awarded by the trial court in favor of private respondent with respect to

his counterclaims and, accordingly, reduce the same as follows:

(a) Moral damages - fromP200,000.00 to P100,000.00,

(b) (b)Exemplarydamages from P100,000.00 to P75,000.00,

(c) (c) Attorney's fees - from P 50,000,00 to P 30,000.00.

WHEREFORE, subject to these modifications, the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.


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G.R. No. L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner, vs.THE HON. COURT OF APPEALS, ET AL., respondents.

ReginoHermosisima for petitioner.F.P. Gabriel, Jr. for respondents.

CONCEPCION,J.:

An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals

modifying that of the Court of First Instance of Cebu.

On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris

Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the paternity of

child and expressed willingness to support the latter, but denied having ever promised to marry the complainant.

Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of alimony pendente lite, P50.00a month, which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a

decision the dispositive part of which reads:

WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of

defendant, and confirming the orderpendente lite, ordering defendant to pay to the said child, through plaintiff, the

sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing defendant to pay to

plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory damages; thesum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of FIVE HUNDRED PESOS

(P500.00) as attorney's fees for plaintiff, with costs against defendant.

On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and


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compensatory damages and the moral damages, which were increased to P5,614.25 and P7,000.00, respectively.

The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to

marry. The pertinent facts are:

Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga

Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than s he, used to go around

together and were regarded as engaged, although he had made no promise of marriage prior thereto. In 1951, she

gave up teaching and became a life insurance underwriter in the City of Cebu, where intimacy developed among her

and the petitioner, since one evening in 1953, when after coming from the movies, they had sexual intercourse in his

cabin on board M/V "Escao," to which he was then attached as apprentice pilot. In February 1954, Soledad advised

petitioner that she was in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was

born on June 17, 1954, in a private maternity and clinic. However, subsequently, or on July 24, 1954, defendant

married one Romanita Perez. Hence, the present action, which was commenced on or about October 4, 1954.

Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery

of damages for breach to marry. Article 43 and 44 of said Code provides:

ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall

entertain any complaint by which the enforcement of such promise is sought.

ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with theconcurrence of the person whose consent is necessary for the celebration of the marriage, or if the banns ha ve been

published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the expenses

which he or she may have incurred by reason of the promised marriage.


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The action for reimbursement of expenses to which the foregoing article refers must be brought within one

year, computed from the day of the refusal to celebrate t he marriage.

Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil.,

866), that "the action for breach of promises to marry has no standing in the civil law, apart from the right to recover

money or property advanced . . . upon the faith of such promise". The Code Commission charged with the drafting of

the Proposed Civil Code of the Philippines deem it best, however, to change the law thereon. We quote from the

report of the Code Commission on said Proposed Civil Code:

Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in

the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect t reated of in said articles

but also in other particulars. It is advisable to furnish legislative solutions to some questions that might arise relative

to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral damages, in case of

breach of promise of marriage, and that creating liability for causing a marriage engagement to be broken. 1 a w p h l . n t

Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book

I thereof:

Art. 56. A mutual promise to marry may be made expressly or impliedly.

Art. 57. An engagement to be married must be agreed directly by the future spouses.

Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by a

male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen years.

Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil action for

damages in case of breach of the promise.


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Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even

though approved by the parent or guardian.

Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction

shall not be affected.

Art. 61. No action for specific performance of a mutual promise to marry may be brought.

Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor

without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian may

institute the action.

Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also

compensation for mental and moral suffering.

Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who cause a

marriage engagement to be broken shall be liable for damages, both material and moral, to the engaged person who

is rejected.

Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what he

or she has received from the other as gift on account of the promise of the marriage.

These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the

corresponding Senate Committee, from which we quote:

The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been


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definitely decide in the case ofDe Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United

States and in England has shown that no other action lends itself more readily to abuse by designing women and

unscrupulous men. It is this experience which has led to the abolition of the rights of action in the so -called Balm suit

in many of the American States.

See statutes of:

Florida 1945 pp. 1342 1344Maryland 1945 pp. 1759 1762Nevada 1943 p. 75Maine 1941 pp.

140 141New Hampshire 1941 p. 223California 1939 p. 1245Massachusetts 1938 p. 326Indiana

1936 p. 1009Michigan 1935 p. 201New York 1935Pennsylvania p. 450

The Commission perhaps though that it has followed the more progression trend in legislation when it

provided for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when

so many States, in consequence of years of experience are doing away with them , may well prove to be a step in the

wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.)

The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest

intent of our law making body not to sanction actions for breach of promise to marry, the award of moral damages

made by the lower courts is, accordingly, untenable. The Court of Appeals said award:

Moreover, it appearing that because of defendant -appellant's seduction power, plaintiff-appellee, overwhelmed

by her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman afterall, we hold that said defendant-appellant is liable for seduction and, therefore, moral damages may be recovered

from him under the provision of Article 2219, paragraph 3, of the new Civil Code.

Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those


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following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that the

"seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of the

Revised Penal Code, which admittedly does not exi st in the present case, we find ourselves unable to say that

petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the

complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school teacher

and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice

pilot, but, also, because, the court of first instance found that, complainant "surrendered herself" to petitione rbecause, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their engagement even before

they had the benefit ofclergy."

The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the

support of the child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her

pregnancy and shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral

damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second item the sum of P1,114.25

consisting of P144.20, for hospitalization and medical attendance, in connection with the parturiation, and the

balance representing expenses incurred to support the child and increased the moral damages to P7,000.00.

With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed,

therefore, in all other respects, without special pronouncement as to cost in this instance. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, GutierrezDavid, Paredes andDizon, JJ.,

concur.

G.R. No. L-20089 December 26, 1964


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BEATRIZ P.WASSMER, plaintiff-appellee, vs.FRANCISCO X. VELEZ, defendant-appellant.

Jalandoni&Jamir for defendant-appellant.Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P.,J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious

endeavors, but terminated in frustration and, what is worse, complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set

September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be:

Dear Bet

Will have to postpone wedding My mother opposes it. Am leaving on the Convair today.

Please do not ask too many people about the reason why That would only create a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.


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Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the

clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff

P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the

costs.

On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new

trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and

their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of

arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the

opposition thereto will be deemed submitted for resolution."

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion

to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with

defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable element. The court

granted two weeks counted from August 25, 1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but

that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and

their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances

of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this

Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set

aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable


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settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly

supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.)

Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense

against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event

and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions

instead of facts is notvalid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800,December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage,

because the judgment sought to be set aside was null and void, it having been based on evidence adduced before the

clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the

procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule

33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for

he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First

Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law.

The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to

marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs.

Biansay(L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. Wepointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would

have it so.


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It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with

impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to

another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the

damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which

was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and

distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and

other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower

girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received

(Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left

a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city

in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured

returning soon." But he never returned and was never heard from again.

Surely this is not a case ofmere breach of promise to marry. As stated, mere breach of promise to marry is not an

actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity,

only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and

unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with

Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as tothe award of actual damages. What defendant would really assert hereunder is that the award of moral and

exemplary damages, in the amount of P25,000.00, should be totally eliminated.


21/21

Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases

mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be

adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the

defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of

merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and]

oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case,

P15,000.00 as moral and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with

costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and Zaldivar, JJ., concur.

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