Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23229 July 20, 1967
ANDRES P. BARING, plaintiff-appellee,
vs.
CESAR M. CABAHUG, defendant-appellant.
Temesticles Boholtst, Jr. for defendant-appellant.
Eleno Andales for plaintiff-appellee.
BENGZON, J.P., J.:
With Andres P. Baring as lessor, and Cesar M. Cabahug as lessee, both entered on June 26, 1960 into a contract of lease over a parcel of land in Pajo, Opon [now Lapulapu City], Cebu, Lot No. 202 of the Opon Cadastre, for a period of five (5) years starting from July 1, 1960. The rental agreed upon was P75 per month, payable as follows: P375 upon signing of the agreement, as advanced rentals for five (5) months or from July 1, 1960 to November 30, 1960; thereafter, P255 advance rentals for the next succeeding three months, payable on the first five days of every three months.
Pursuant thereto, Cabahug paid P375 on the date of execution of the lease. On December 3, 1960, he paid P75 as part payment of the advance rentals for the three-month period from December 1960 to February 1961. On February 1, 1961, Baring's counsel sent Cabahug a demand letter. On May 22, 1961, a second demand letter was written. Altho Cabahug admittedly received said letters, no further payment of rentals was made.
On February 8, 1962, Baring sued Cabahug in the Court of First Instance of Cebu for specific performance of the lease contract, i.e., payment of rentals due, plus damages and attorney's fees.1äwphï1.ñët
On April 24, 1962, Cabahug answered with a counter-claim for rescission of the contract, with damages, alleging that he signed the lease on the strength of Baring's misrepresentation that the parcel of land is the same one formerly owned by Philippine Refining Co., Inc., and that, furthermore, the subject lot has not been delivered to him until now.
After Baring replied to the counterclaim on April 30, 1962, trial started, on November 13, 1962. It was set to be continued on November 20 and 21, 1962. Plaintiff continued testifying on cross-examination on November 20, 1962. The parties then agreed to continue the next trial on January 25, 1963. Attorney for the defendant, however, on January 25, 1963, submitted a written motion for postponement with the opposing counsel's conformity. So the case was reset for March 26, 1963, notice of which was personally received by defendant's counsel.
On March 26, 1963, neither defendant nor his counsel appeared in court. Plaintiff offered his evidence and the case was submitted for decision. Subsequently, on June 28, 1963, the Court of First Instance rendered its decision, ordering defendant to pay plaintiff P2,250.00 as rentals for 1961, 1962 and January to June of 1963, plus P300.00 attorney's fees and the costs.
On August 14, 1963 defendant's counsel filed a motion for new trial stating that his non-appearance was due to the negligence of his office clerk who forgot to note in his trial calendar the date stated in the notice and who thereafter misplaced or lost said notice; further, defendant-allegedly has a good and valid defense. Submitted therewith were an affidavit of the clerk and an affidavit of merits, signed by defendant's lawyer, asserting that the parcel of land covered by the lease was never delivered to defendant and that what defendant has occupied lies outside of said lot, "as will be shown by competent evidence later on."
Said motion was denied on September 13, 1963. So, also, a motion to reconsider the denial, was itself denied. From the denial orders, defendant has appealed directly to Us, alleging that said denial does not serve the ends of justice is attended with abuse of discretion and overlooks defendant's good and valid defense.
The rule is that promotions for new trial rest on the sound discretion of the trial court (Porciuncula v. Adamos, L-11519-20, April 30, 1958, 55 O.G. 32). Among the grounds therefor is excusable negligence (Sec. 1, Rule 37, Rules of Court), and defendant's motion invoked such ground. It is clear from the record however that defendant's counsel" was inexcusably negligent in failing to take note of the date for the trial in question. As stated, he personally received the notice from the court; it was on his motion that said trial was postponed, having received the notice of the court, he should have forthwith entered the date for the next trial in his calendar, but for no excusable reason he neglected to do so. The fact that he delegated to his clerk the task of noting it down in his trial calendar and that the latter forgot to do so, and even lost the notice itself, does not constitute excusable negligence. For it is the duty of counsel to adopt and strictly maintain a system that efficiently takes into account all court notices sent to him. And for want of diligent supervision, the inexcusable negligence of tile clerk is thus imputable to the aforesaid counsel.
As to the defense stated in the affidavit of merits, the same does not deserve a re-opening of the case. If indeed the parcel of land was never delivered to the lessee, it is strange why he made a total payment of P450.00 for rentals and why he never complained for non-delivery of the lot until he filed his answer to the complaint on April 24, 1962 or about a year and 9 months after the contract went into effect. Defendant's silence during this period, notwithstanding plaintiff two demand letters received by him, belies his pretenses to non-delivery of the land.
Wherefore, the appealed order denying the motion for new trial is affirmed, with costs against appellant. So ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.
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