Additional Cases_Obligations and Contract

8/13/2019 Additional Cases_Obligations and Contract

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G.R. No. 107112 February 24, 1994

NAGA TELEPHONE CO., INC. (NATELCO) AN L!CIANO ". "AGGA#, petitioners,vs.THE CO!RT OF APPEAL$ AN CA"ARINE$ $!R II ELECTRIC COOPERATI%E, INC. (CA$!RECO

II),respondents.

NOCON, J.:

The case of Reyes v. Caltex (Philippines), Inc. 1 enunciated the doctrine that where a person by hiscontract charges hi self with an obligation possible to be perfor ed, he ust perfor it, unless itsperfor ance is rendered i possible by the act of !od, by the law, or by the other party, it being the rulethat in case the party desires to be excused fro perfor ance in the event of contingencies arisingthereto, it is his duty to provide the basis therefor in his contract.

"ith the enact ent of the #ew Civil Code, a new provision was included therein, na ely, $rticle %&'which provides

"hen the service has beco e so difficult as to be anifestly beyond the conte plationof the parties, the obligor ay also be released therefro , in whole or in part.

In the report of the Code Co ission, the rationale behind this innovation was explained, thus

The general rule is that i possibility of perfor ance releases the obligor. *owever, it issub itted that when the service has beco e so difficult as to be anifestly beyond theconte plation of the parties, the court should be authori+ed to release the obligor inwhole or in part. The intention of the parties should govern and if it appears that theservice turns out to be so difficult as to have been beyond their conte plation, it would bedoing violence to that intention to hold their conte plation, it would be doing violence tothat intention to hold the obligor still responsible. 2

In other words, fair and s uare consideration underscores the legal precept therein.

#aga Telephone Co., Inc. re onstrates ainly against the application by the Court of $ppeals of $rticle%&' in favor of Ca arines -ur II lectric Cooperative, Inc. in the case before us. -tated differently, thefor er insists that the co plaint should have been dis issed for failure to state a cause of action.

The antecedent facts, as narrated by respondent Court of $ppeals are, as follows

Petitioner #aga Telephone Co., Inc. (#$T /C0) is a telephone co pany rendering local as well as longdistance telephone service in #aga City while private respondent Ca arines -ur II lectric Cooperative,Inc. (C$-1R C0 II) is a private corporation established for the purpose of operating an electric powerservice in the sa e city.

0n #ove ber %, %2 , the parties entered into a contract ( xh. 3$3) for the use by petitioners in theoperation of its telephone service the electric light posts of private respondent in #aga City. In


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consideration therefor, petitioners agreed to install, free of charge, ten (%4) telephone connections for theuse by private respondent in the following places

(a) 5 units 6 The 7ain 0ffice of (private respondent)8

(b) & 1nits 6 The "arehouse of (private respondent)8

(c) % 1nit 6 The -ub9-tation of (private respondent) at Concepcion Pe ue:a8

(d) % 1nit 6 The Residence of (private respondent;s) President8

(e) % 1nit 6 The Residence of (private respondent;s) $cting !eneral 7anager8 its operation as a public service and it beco esnecessary to re ove the electric lightpost8 (sic) 4

It was prepared by or with the assistance of the other petitioner, $tty. /uciano 7. 7aggay, then a e berof the ?oard of @irectors of private respondent and at the sa e ti e the legal counsel of petitioner.

$fter the contract had been enforced for over ten (%4) years, private respondent filed on Aanuary &, %2B2with the Regional Trial Court of #aga City (?r. &B) C.C. #o. B29%' & against petitioners for refor ation ofthe contract with da ages, on the ground that it is too one9sided in favor of petitioners8 that it is not inconfor ity with the guidelines of the #ational lectrification $d inistration (# $) which direct that thereasonable co pensation for the use of the posts is P%4.44 per post, per onth8 that after eleven (%%)years of petitioners; use of the posts, the telephone cables strung by the thereon have beco e uchheavier with the increase in the volu e of their subscribers, worsened by the fact that their line en boreholes through the posts at which points those posts were broDen during typhoons8 that a post now costsas uch as P&,'54.448 so that Eustice and e uity de and that the contract be refor ed to abolish theine uities thereon.

$s second cause of action, private respondent alleged that starting with the year %2B%, petitioners haveused 5%2 posts in the towns of Pili, Cana an, 7agarao and 7ilaor, Ca arines -ur, all outside #aga City,

without any contract with it8 that at the rate of P%4.44 per post, petitioners should pay private respondentfor the use thereof the total a ount of P&' ,2'4.44 fro %2B% up to the filing of its co plaint8 and thatpetitioners had refused to pay private respondent said a ount despite de ands.

$nd as third cause of action, private respondent co plained about the poor servicing by petitioners of theten (%4) telephone units which had caused it great inconvenience and da ages to the tune of not lessthan P%44,444.44


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In petitioners; answer to the first cause of action, they averred that it should be dis issed because (%) itdoes not sufficiently state a cause of action for refor ation of contract8 (&) it is barred by prescription, thesa e having been filed ore than ten (%4) years after the execution of the contract8 and (5) it is barred byestoppel, since private respondent seeDs to enforce the contract in the sa e action. Petitioners furtheralleged that their utili+ation of private respondent;s posts could not have caused their deterioration

because they have already been in use for eleven (%%) years8 and that the value of their expenses for theten (%4) telephone lines long enEoyed by private respondent free of charge are far in excess of thea ounts clai ed by the latter for the use of the posts, so that if there was any ine uity, it was suffered bythe .

Regarding the second cause of action, petitioners clai ed that private respondent had asDed fortelephone lines in areas outside #aga City for which its posts were used by the 8 and that if petitionershad refused to co ply with private respondent;s de ands for pay ent for the use of the posts outside#aga City, it was probably because what is due to the fro private respondent is ore than its claiagainst the .

$nd with respect to the third cause of action, petitioners clai ed, inter alia , that their telephone servicehad been categori+ed by the #ational Teleco unication Corporation (#TC) as 3very high3 and of3superior uality.3

@uring the trial, private respondent presented the following witnesses

(%) @ioscoro Ragragio, one of the two officials who signed the contract in its behalf, declared that it waspetitioner 7aggay who prepared the contract8 that the understanding between private respondent andpetitioners was that the latter would only use the posts in #aga City because at that ti e, petitioners;capability was very li ited and they had no expectation of expansion because of legal s uabbles withinthe co pany8 that private respondent agreed to allow petitioners to use its posts in #aga City becausethere were any subscribers therein who could not be served by the because of lacD of facilities8 and

that while the telephone lines strung to the posts were very light in %2 , said posts have beco e heavilyloaded in %2B2.

(&) ngr. $ntonio ?orEa, Chief of private respondent;s /ine 0peration and 7aintenance @epart ent,declared that the posts being used by petitioners totalled %, 45 as of $pril % , %2B2, %2& of which were inthe towns of Pili, Cana an, and 7agarao, all outside #aga City ( xhs. 3?3 and 3?9%3)8 that petitioners;cables strung to the posts in %2B2 are uch bigger than those in #ove ber, %2 8 that in %2B , al ost%44 posts were destroyed by typhoon -isang around &4 posts were located between #aga City and thetown of Pili while the posts in barangay Concepcion, #aga City were broDen at the iddle which had beenbored by petitioner;s line en to enable the to string bigger telephone lines8 that while the cost per postin %2 was only fro P 44.44 to P%,444.44, their costs in %2B2 went up fro P%,F44.44 to P&,444.44,

depending on the si+e8 that so e lines that were strung to the posts did not follow the ini u verticalclearance re uired by the #ational ?uilding Code, so that there were cases in %2BB where, because ofthe low clearance of the cables, passing trucDs would accidentally touch said cables causing the posts tofall and resulting in brown9outs until the electric lines were repaired.

(5) @ario ?ernarde+, ProEect -upervisor and $cting !eneral 7anager of private respondent and 7anagerof Region G of # $, declared that according to # $ guidelines in %2BF ( xh. 3C3), for the use by privatetelephone syste s of electric cooperatives; posts, they should pay a ini u onthly rental of P .44 per


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post, and considering the escalation of prices since %2BF, electric cooperatives have been charging froP%4.44 to P%F.44 per post, which is what petitioners should pay for the use of the posts.

( ) ngineer $ntonio 7acandog, @epart ent *ead of the 0ffice of -ervices of private respondent,testified on the poor service rendered by petitioner;s telephone lines, liDe the telephone in their

Co plaints -ection which was usually out of order such that they could not respond to the calls of theircusto ers. In case of disruption of their telephone lines, it would taDe two to three hours for petitioners toreactivate the notwithstanding their calls on the e ergency line.

(F) Hinally, $tty. /uis !eneral, Ar., private respondent;s counsel, testified that the ?oard of @irectors asDedhi to study the contract so eti e during the latter part of %2B& or in %2B5, as it had appeared verydisadvantageous to private respondent. #otwithstanding his reco endation for the filing of a courtaction to refor the contract, the for er general anagers of private respondent wanted to adopt a softapproach with petitioners about the atter until the ter of !eneral 7anager *enry Pascual who, afterfailing to settle the atter a icably with petitioners, finally agreed for hi to file the present action forrefor ation of contract.

0n the other hand, petitioner 7aggay testified to the following effect

(%) It is true that he was a e ber of the ?oard of @irectors of private respondent and at the sa e ti ethe lawyer of petitioner when the contract was executed, but $tty. !audioso Tena, who was also a

e ber of the ?oard of @irectors of private respondent, was the one who saw to it that the contract wasfair to both parties.

(&) "ith regard to the first cause of action

(a) Private respondent has the right under the contract to use ten (%4) telephone units of petitioners for aslong as it wishes without paying anything therefor except for long distance calls through P/@T out ofwhich the latter get only %4 of the charges.

(b) In ost cases, only drop wires and not telephone cables have been strung to the posts, which postshave re ained erect up to the present8

(c) Petitioner;s line en have strung only s all essenger wires to any of the posts and they need onlys all holes to pass through8 and

(d) @ocu ents existing in the #TC show that the stringing of petitioners; cables in #aga City areaccording to standard and co parable to those of P/@T. The accidents entioned by private respondentinvolved trucDs that were either overloaded or had loads that protruded upwards, causing the to hit the

cables.

(5) Concerning the second cause of action, the intention of the parties when they entered into the contractwas that the coverage thereof would include the whole area serviced by petitioners because at that ti e,they already had subscribers outside #aga City. Private respondent, in fact, had asDed for telephoneconnections outside #aga City for its officers and e ployees residing there in addition to the ten (%4)telephone units entioned in the contract. Petitioners have not been charging private respondent for the


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installation, transfers and re9connections of said telephones so that naturally, they use the posts for thosetelephone lines.

( ) "ith respect to the third cause of action, the #TC has found petitioners; cable installations to be inaccordance with engineering standards and practice and co parable to the best in the country.

0n the basis of the foregoing countervailing evidence of the parties, the trial court found, as regardsprivate respondent;s first cause of action, that while the contract appeared to be fair to both parties whenit was entered into by the during the first year of private respondent;s operation and when its ?oard of@irectors did not yet have any experience in that business, it had beco e disadvantageous and unfair toprivate respondent because of subse uent events and conditions, particularly the increase in the volu eof the subscribers of petitioners for ore than ten (%4) years without the corresponding increase in thenu ber of telephone connections to private respondent free of charge. The trial court concluded thatwhile in an action for refor ation of contract, it cannot aDe another contract for the parties, it can,however, for reasons of Eustice and e uity, order that the contract be refor ed to abolish the ine uitiestherein. Thus, said court ruled that the contract should be refor ed by ordering petitioners to pay privaterespondent co pensation for the use of their posts in #aga City, while private respondent should also beordered to pay the onthly bills for the use of the telephones also in #agaCity. $nd taDing intoconsideration the guidelines of the # $ on the rental of posts by telephone co panies and the increasein the costs of such posts, the trial court opined that a onthly rental of P%4.44 for each post of privaterespondent used by petitioners is reasonable, which rental it should pay fro the filing of the co plaint inthis case on Aanuary &, %2B2. $nd in liDe anner, private respondent should pay petitioners fro thesa e date its onthly bills for the use and transfers of its telephones in#aga City at the sa e rate thatthe public are paying.

0n private respondent;s second cause of action, the trial court found that the contract does not entionanything about the use by petitioners of private respondent;s posts outside #aga City. Therefore, the trialcourt held that for reason of e uity, the contract should be refor ed by including therein the provision that

for the use of private respondent;s posts outside #aga City, petitioners should pay a onthly rental ofP%4.44 per post, the pay ent to start on the date this case was filed, or on Aanuary &, %2B2, and privaterespondent should also pay petitioners the onthly dues on its telephone connections located outside#aga City beginning Aanuary, %2B2.

$nd with respect to private respondent;s third cause of action, the trial court found the clai notsufficiently proved.

Thus, the following decretal portion of the trial court;s decision dated Auly &4, %224

"* R H0R , in view of all the foregoing, decision is hereby rendered ordering the

refor ation of the agree ent ( xh. $)8 ordering the defendants to pay plaintiff;s electricpoles in #aga City and in the towns of 7ilaor, Cana an, 7agarao and Pili, Ca arines-ur and in other places where defendant #$T /C0 uses plaintiff;s electric poles, thesu of T # (P%4.44) P -0- per plaintiff;s pole, per onth beginning Aanuary, %2B2 andordering also the plaintiff to pay defendant #$T /C0 the onthly dues of all itstelephones including those installed at the residence of its officers, na ely8 ngr.Aoventino Cru+, ngr. $ntonio ?orEa, ngr. $ntonio 7acandog, 7r. Aesus 0piana and

$tty. /uis !eneral, Ar. beginning Aanuary, %2B2. Plaintiff;s clai for attorney;s fees and


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expenses of litigation and defendants; counterclai are both hereby ordered dis issed."ithout pronounce ent as to costs.

@isagreeing with the foregoing Eudg ent, petitioners appealed to respondent Court of $ppeals. In thedecision dated 7ay &B, %22&, respondent court affir ed the decision of the trial court, ' but based on

different grounds to wit (%) that $rticle %&' of the #ew Civil Code is applicable and (&) that the contractwas subEect to a potestative condition which rendered said condition void. The otion for reconsiderationwas denied in the resolution dated -epte ber %4, %22&. *ence, the present petition.

Petitioners assign the following pertinent errors co itted by respondent court

%) in aDing a contract for the parties by invoDing $rticle %&' of the #ew Civil Code8

&) in ruling that prescription of the action for refor ation of the contract in this caseco enced fro the ti e it beca e disadvantageous to private respondent8 and

5) in ruling that the contract was subEect to a potestative condition in favor of petitioners.

Petitioners assert earnestly that $rticle %&' of the #ew Civil Code is not applicable pri arily because thecontract does not involve the rendition of service or a personal prestation and it is not for future servicewith future unusual change. Instead, the ruling in the case of Occea, et al. v. Jabson, etc., et al. , 7 whichinterpreted the article, should be followed in resolving this case. ?esides, said article was never raised bythe parties in their pleadings and was never the subEect of trial and evidence.

In applying $rticle %&' , respondent court rationali+ed

"e agree with appellant that in order that an action for refor ation of contract would lieand ay prosper, there ust be sufficient allegations as well as proof that the contract in

uestion failed to express the true intention of the parties due to error or istaDe,accident, or fraud. Indeed, in e bodying the e uitable re edy of refor ation ofinstru ents in the #ew Civil Code, the Code Co ission gave its reasons as follows

uity dictates the refor ation of an instru ent in order that the trueintention of the contracting parties ay be expressed. The courts by therefor ation do not atte pt to aDe a new contract for the parties, but to

aDe the instru ent express their real agree ent. The rationale of thedoctrine is that it would be unEust and ine uitable to allow theenforce ent of a written instru ent which does not reflect or disclose thereal eeting of the inds of the parties. The rigor of the legalistic rule

that a written instru ent should be the final and inflexible criterion andeasure of the rights and obligations of the contracting parties is thus

te pered to forestall the effects of istaDe, fraud, ine uitable conduct, oraccident. (pp. FF9F', Report of Code Co ission)

Thus, $rticles %5F2, %5'%, %5'&, %5'5 and %5' of the #ew Civil Code provide inessence that where through istaDe or accident on the part of either or both of theparties or istaDe or fraud on the part of the clerD or typist who prepared the instru ent,


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the true intention of the parties is not expressed therein, then the instru ent ay berefor ed at the instance of either party if there was utual istaDe on their part, or bythe inEured party if only he was istaDen.

*ere, plaintiff9appellee did not allege in its co plaint, nor does its evidence prove, that

there was a istaDe on its part or utual istaDe on the part of both parties when theyentered into the agree ent xh. 3$3, and that because of this istaDe, said agree entfailed to express their true intention. Rather, plaintiff;s evidence shows that saidagree ent was prepared by $tty. /uciano 7aggay, then a e ber of plaintiff;s ?oard of@irectors and its legal counsel at that ti e, who was also the legal counsel for defendant9appellant, so that as legal counsel for both co panies and presu ably with the interestsof both co panies in ind when he prepared the aforesaid agree ent, $tty. 7aggay

ust have considered the sa e fair and e uitable to both sides, and this was affir ed bythe lower court when it found said contract to have been fair to both parties at the ti e ofits execution. In fact, there were no co plaints on the part of both sides at the ti e of andafter the execution of said contract, and according to 59year old Austino de Aesus, GicePresident and !eneral anager of appellant at the ti e who signed the agree ent xh.3$3 in its behalf and who was one of the witnesses for the plaintiff (sic), both partiesco plied with said contract 3fro the very beginning3 (p. F, tsn, $pril % , %2B2).

That the aforesaid contract has beco e ine uitous or unfavorable or disadvantageous tothe plaintiff with the expansion of the business of appellant and the increase in thevolu e of its subscribers in #aga City and environs through the years, necessitating thestringing of ore and bigger telephone cable wires by appellant to plaintiff;s electric postswithout a corresponding increase in the ten (%4) telephone connections given byappellant to plaintiff free of charge in the agree ent xh. 3$3 as consideration for its useof the latter;s electric posts in #aga City, appear, however, undisputed fro the totality ofthe evidence on record and the lower court so found. $nd it was for this reason that in the

later (sic) part of %2B& or %2B5 (or five or six years after the subEect agree ent wasentered into by the parties), plaintiff;s ?oard of @irectors already asDed $tty. /uis !eneralwho had beco e their legal counsel in %2B&, to study said agree ent which theybelieved had beco e disadvantageous to their co pany and to aDe the properreco endation, which study $tty. !eneral did, and thereafter, he alreadyreco ended to the ?oard the filing of a court action to refor said contract, but noaction was taDen on $tty. !eneral;s reco endation because the for er general

anagers of plaintiff wanted to adopt a soft approach in discussing the atter withappellant, until, during the ter of !eneral 7anager *enry Pascual, the latter, after failingto settle the proble with $tty. /uciano 7aggay who had beco e the president andgeneral anager of appellant, already agreed for $tty. !eneral;s filing of the present

action. The fact that said contract has beco e ine uitous or disadvantageous to plaintiffas the years went by did not, however, give plaintiff a cause of action for refor ation ofsaid contract, for the reasons already pointed out earlier. ?ut this does not ean thatplaintiff is co pletely without a re edy, for we believe that the allegations of its co plaintherein and the evidence it has presented sufficiently aDe out a cause of action under

$rt. %&' of the #ew Civil Code for its release fro the agree ent in uestion.

xxx xxx xxx


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The understanding of the parties when they entered into the $gree ent xh. 3$3 on#ove ber %, %2 and the prevailing circu stances and conditions at the ti e, weredescribed by @ioscoro Ragragio, the President of plaintiff in %2 and one of its twoofficials who signed said agree ent in its behalf, as follows

0ur understanding at that ti e is that we will allow #$T /C0 to utili+ethe posts of C$-1R C0 II only in the City of #aga because at that ti ethe capability of #$T /C0 was very li ited, as a atter of fact we do=sic> not expect to be able to expand because of the legal s uabblesgoing on in the #$T /C0. -o, even at that ti e there were so anysubscribers in #aga City that cannot be served by the #$T /C0, so asa ater of public service we allowed the to sue (sic) our posts withinthe #aga City. (p. B, tsn $pril 5, %2B2)

Ragragio also declared that while the telephone wires strung to the electric posts ofplaintiff were very light and that very few telephone lines were attached to the posts ofC$-1R C0 II in %2 , said posts have beco e 3heavily loaded3 in %2B2 (tsn, id.).

In truth, as also correctly found by the lower court, despite the increase in the volu e ofappellant;s subscribers and the corresponding increase in the telephone cables and wiresstrung by it to plaintiff;s electric posts in #aga City for the ore %4 years that theagree ent xh. 3$3 of the parties has been in effect, there has been no correspondingincrease in the ten (%4) telephone units connected by appellant free of charge to plaintiff;soffices and other places chosen by plaintiff;s general anager which was the onlyconsideration provided for in said agree ent for appellant;s use of plaintiffs electric posts.#ot only that, appellant even started using plaintiff;s electric postsoutside #agaCity although this was not provided for in the agree ent xh. 3$3 as itextended and expanded its telephone services to towns outside said city. *ence, while

very few of plaintiff;s electric posts were being used by appellant in %2 and they wereall in the City of #aga, the nu ber of plaintiff;s electric posts that appellant was using in%2B2 had Eu ped to %, 45,%2& of which are outside #aga City ( xh. 3?3). $dd to this thedestruction of so e of plaintiff;s poles during typhoons liDe the strong typhoon -isang in%2B because of the heavy telephone cables attached thereto, and the escalation of thecosts of electric poles fro %2 to %2B2, and the conclusion is indeed ineluctable thatthe agree ent xh. 3$3 has already beco e too one9sided in favor of appellant to thegreat disadvantage of plaintiff, in short, the continued enforce ent of said contract has

anifestly gone far beyond the conte plation of plaintiff, so uch so that it should nowbe released therefro under $rt. %&' of the #ew Civil Code to avoid appellant;s unEustenrich ent at its (plaintiff;s) expense. $s stated by Tolentino in his co entaries on the

Civil Code citing foreign civilist Ruggiero, "equity demands a certain economicequilibrium between the prestation and the counter-prestation, and does not permit theunlimited impoverishment of one party for the benefit of the other by the excessive rigidityof the principle of the obligatory force of contracts (IG Tolentino, Civil Code of thePhilippines, %2B' ed.,pp. & 9& B).


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"e therefore, find nothing wrong with the ruling of the trial court, although based on adifferent and wrong pre ise (i.e., refor ation of contract), that fro the date of the filingof this case, appellant ust pay for the use of plaintiff;s electric posts in #aga City at thereasonable onthly rental of P%4.44 per post, while plaintiff should pay appellant for thetelephones in the sa e City that it was for erly using free of charge under the ter s of

the agree ent xh. 3$3 at the sa e rate being paid by the general public. In affir ingsaid ruling, we are not aDing a new contract for the parties herein, but we find itnecessary to do so in order not to disrupt the basic and essential services being renderedby both parties herein to the public and to avoid unEust enrich ent by appellant at theexpense of plaintiff, said arrange ent to continue only until such ti e as said parties canre9negotiate another agree ent over the sa esubEect9 atter covered by the agree ent xh. 3$3. 0nce said agree ent is reached andexecuted by the parties, the aforesaid ruling of the lower court and affir ed by us shallcease to exist and shall be substituted and superseded by their new agree ent. . . ..

$rticle %&' speaDs of 3service3 which has beco e so difficult. TaDing into consideration the rationalebehind this provision, 9 the ter 3service3 should be understood as referring to the 3perfor ance3 of theobligation. In the present case, the obligation of private respondent consists in allowing petitioners to useits posts in #aga City, which is the service conte plated in said article. Hurther ore, a bare reading ofthis article reveals that it is not a re uire ent thereunder that the contract be for future service with futureunusual change. $ccording to -enator $rturo 7. Tolentino, 10 $rticle %&' states in our law the doctrine ofunforseen events. This is said to be based on the discredited theory of rebus sic stantibus in publicinternational law8 under this theory, the parties stipulate in the light of certain prevailing conditions, andonce these conditions cease to exist the contract also ceases to exist. Considering practical needs andthe de ands of e uity and good faith, the disappearance of the basis of a contract gives rise to a right torelief in favor of the party preEudiced.

In a nutshell, private respondent in the 0cce:a case filed a co plaint against petitioner before the trial

court praying for modification of the ter s and conditions of the contract that they entered into by fixingthe proper shares that should pertain to the out of the gross proceeds fro the sales of subdivided lots."e ordered the dis issal of the co plaint therein for failure to state a sufficient cause of action. "erationali+ed that the Court of $ppeals isapplied $rticle %&' because

. . . respondent;s co plaint seeDs not release fro the subdivision contract but that thecourt 3render Eudg ent modifying the ter s and conditions of the contract . . .byfixing the proper shares that should pertain to the herein parties out of the gross

proceeds fro the sales of subdivided lots of subEect subdivision3. The cited article($rticle %&' ) does not grant the courts (the) authority to re aDe, odify or revise thecontract or to fix the division of shares between the parties as contractually stipulated

with the force of law between the parties, so as to substitute its own ter s for thosecovenanted by the parties the selves. Respondent;s co plaint for odification ofcontract anifestly has no basis in law and therefore states no cause of action. 1nder theparticular allegations of respondent;s co plaint and the circu stances therein averred,the courts cannot even in e uity grant the relief sought. 11

The ruling in the 0cce:a case is not applicable because we agree with respondent court that theallegations in private respondent;s co plaint and the evidence it has presented sufficiently ade out a


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cause of action under $rticle %&' . "e, therefore, release the parties fro their correlative obligationsunder the contract. *owever, our disposition of the present controversy does not end here. "e have totaDe into account the possible conse uences of erely releasing the parties therefro petitioners willre ove the telephone wiresJcables in the posts of private respondent, resulting in disruption of theirservice to the public8 while private respondent, in consonance with the contract 12 will return all the

telephone units to petitioners, causing preEudice to its business. "e shall not allow such eventuality.Rather, we re uire, as ordered by the trial court %) petitioners to pay private respondent for the use of itsposts in #aga City and in the towns of 7ilaor, Cana an, 7agarao and Pili, Ca arines -ur and in otherplaces where petitioners use private respondent;s posts, the su of ten (P%4.44) pesos per post, per

onth, beginning Aanuary, %2B28 and &) private respondent to pay petitioner the onthly dues of all itstelephones at the sa e rate being paid by the public beginning Aanuary, %2B2. The peculiarcircu stances of the present case, as distinguished further fro the 0cce:a case, necessitates exerciseof our e uity Eurisdiction. 1& ?y way of e phasis, we reiterate the rationali+ation of respondent court that

. . . In affir ing said ruling, we are not aDing a new contract for the parties herein, butwe find it necessary to do so in order not to disrupt the basic and essential services beingrendered by both parties herein to the public and to avoid unEust enrich ent by appellantat the expense of plaintiff . . . . 14

Petitioners; assertion that $rticle %&' was never raised by the parties in their pleadings and was neverthe subEect of trial and evidence has been passed upon by respondent court in its well reasonedresolution, which we hereunder uote as our own

Hirst, we do not agree with defendant9appellant that in applying $rt. %&' of the #ew CivilCode to this case, we have changed its theory and decided the sa e on an issue notinvoDed by plaintiff in the lower court. Hor basically, the ain and pivotal issue in thiscase is whether the continued enforce ent of the contract xh. 3$3 between the partieshas, through the years (since %2 ), beco e too ine uitous or disadvantageous to the

plaintiff and too one9sided in favor of defendant9appellant, so that a solution ust befound to relieve plaintiff fro the continued operation of said agree ent and to preventdefendant9appellant fro further unEustly enriching itself at plaintiff;s expense. It is indeedunfortunate that defendant had turned deaf ears to plaintiffs re uests for renegotiation,constraining the latter to go to court. ?ut although plaintiff cannot, as we have held,correctly invoDe refor ation of contract as a proper re edy (there having been noshowing of a istaDe or error in said contract on the part of any of the parties so as toresult in its failure to express their true intent), this does not ean that plaintiff isabsolutely without a re edy in order to relieve itself fro a contract that has gone farbeyond its conte plation and has beco e so highly ine uitous and disadvantageous to itthrough the years because of the expansion of defendant9appellant;s business and the

increase in the volu e of its subscribers. $nd as it is the duty of the Court to ad inister Eustice, it ust do so in this case in the best way and anner it can in the light of theproven facts and the law or laws applicable thereto.

It is settled that when the trial court decides a case in favor of a party on a certain ground,the appellant court ay uphold the decision below upon so e other point which wasignored or erroneously decided by the trial court (!arcia Galde+ v. Tua+on, 4 Phil. 2 58Relativo v. Castro, ' Phil. F'58 Carillo v. -alaD de Pa+, %B -CR$ ' ). Hurther ore, the


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appellate court has the discretion to consider an unassigned error that is closely relatedto an error properly assigned (Paterno v. Aao Kan, % -CR$ '5%8 *ernande+ v. $ndal, BPhil. %2'). It has also been held that the -upre e Court (and this Court as well) has theauthority to review atters, even if they are not assigned as errors in the appeal, if it isfound that their consideration is necessary in arriving at a Eust decision of the case (-aura

I port < xport Co., Inc. v. Phil. International -urety Co. and P#?, B -CR$ % 5). Hor it isthe aterial allegations of fact in the co plaint, not the legal conclusion ade therein orthe prayer, that deter ines the relief to which the plaintiff is entitled, and the plaintiff isentitled to as uch relief as the facts warrant although that relief is not specifically prayedfor in the co plaint (Rosales v. Reyes and 0rdove+a, &F Phil. 2F8 Cabigao v. /i , F4Phil. B 8 ?aguioro v. ?arrios, Phil. %&4). To uote an old but very illu inatingdecision of our -upre e Court through the pen of $ erican Eurist $da C. Carson

31nder our syste of pleading it is the duty of the courts to grant therelief to which the parties are shown to be entitled by the allegations intheir pleadings and the facts proven at the trial, and the ere fact thatthey the selves isconstrue the legal effect of the facts thus allegedand proven will not prevent the court fro placing the Eust constructionthereon and adEudicating the issues accordingly.3 ($l+ua v. Aohnson, &%Phil. 54B)

$nd in the fairly recent case of Caltex Phil., Inc. v I$C, % ' -CR$ %, the *onorable-upre e Court also held

"e rule that the respondent court did not co it any error in taDingcogni+ance of the aforesaid issues, although not raised before the trialcourt. The presence of strong consideration of substantial Eustice has ledthis Court to relax the well9entrenched rule that, except uestions on

Eurisdiction, no uestion will be entertained on appeal unless it has beenraised in the court below and it is within the issues ade by the parties intheir pleadings (Cordero v. Cabral, /95' B2, Auly &F, %2B5, %&5 -CR$F5&). . . .

"e believe that the above authorities suffice to show that this Court did not err inapplying $rt. %&' of the #ew Civil Code to this case. @efendant9appellant stresses thatthe applicability of said provision is a question of fact , and that it should have been giventhe opportunity to present evidence on said uestion. ?ut defendant9appellant cannothonestly and truthfully clai that it (did) not (have) the opportunity to present evidence onthe issue of whether the continued operation of the contract xh. 3$3 has now beco e

too one9sided in its favor and too ine uitous, unfair, and disadvantageous to plaintiff. $sheld in our decision, the abundant and copious evidence presented by both parties in thiscase and su ari+ed in said decision established the following essential and vital factswhich led us to apply $rt. %&' of the #ew Civil Code to this case

xxx xxx xxx 1'


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0n the issue of prescription of private respondent;s action for refor ation of contract, petitioners allegethat respondent court;s ruling that the right of action 3arose only after said contract had already beco edisadvantageous and unfair to it due to subse uent events and conditions, which ust be so eti eduring the latter part of %2B& or in %2B5 . . .3 1 is erroneous. In refor ation of contracts, what is refor edis not the contract itself, but the instru ent e bodying the contract. It follows that whether the contract is

disadvantageous or not is irrelevant to refor ation and therefore, cannot be an ele ent in thedeter ination of the period for prescription of the action to refor .

$rticle %% of the #ew Civil Code provides, inter alia , that an action upon a written contract ust bebrought within ten (%4) years fro the ti e the right of action accrues. Clearly, the ten (%4) year period isto be recDoned from the time the right of action accrues which is not necessarily the date of execution ofthe contract. $s correctly ruled by respondent court, private respondent;s right of action arose 3so eti eduring the latter part of %2B& or in %2B5 when according to $tty. /uis !eneral, Ar. . . ., he was asDed by(private respondent;s) ?oard of @irectors to study said contract as it already appeared disadvantageousto (private respondent) (p. 5%, tsn, 7ay B, %2B2). (Private respondent;s) cause of action to asD forrefor ation of said contract should thus be considered to have arisen only in %2B& or %2B5, and fro%2B& to Aanuary &, %2B2 when the co plaint in this case was filed, ten (%4) years had not yet elapsed.3 17

Regarding the last issue, petitioners allege that there is nothing purely potestative about the prestations ofeither party because petitioner;s per ission for free use of telephones is not ade to depend purely ontheir will, neither is private respondent;s per ission for free use of its posts dependent purely on its will.

$part fro applying $rticle %&' , respondent court cited another legal re edy available to privaterespondent under the allegations of its co plaint and the preponderant evidence presented by it

. . . we believe that the provision in said agree ent 6

(a) That the ter or period of this contract shall be as long as the party ofthe first part =herein appellant> has need for the electric light posts of theparty of the second part =herein plaintiff> it being understood that thiscontract shall ter inate when for any reason whatsoever, the party of thesecond part is forced to stop, abandoned =sic> its operation as a publicservice and it beco es necessary to re ove the electric light post = sic >38( phasis supplied)

is invalid for being purely potestative on the part of appellant as it leaves the continuedeffectivity of the aforesaid agree ent to the latter;s sole and exclusive will as long asplaintiff is in operation. $ si ilar provision in a contract of lease wherein the partiesagreed that the lessee could stay on the leased pre ises 3for as long as the defendant

needed the pre ises and can eet and pay said increases3 was recently held by the-upre e Court in /i v. C.$., %2% -CR$ %F4, citing the uch earlier case of

ncarnacion v. ?aldo ar, Phil. 4, as invalid for being 3a purely potestative conditionbecause it leaves the effectivity and enEoy ent of leasehold rights to the sole andexclusive will of the lessee.3 Hurther held the *igh Court in the /i case

The continuance, effectivity and fulfill ent of a contract of lease cannotbe ade to depend exclusively upon the free and uncontrolled choice of


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the lessee between continuing the pay ent of the rentals or not,co pletely depriving the owner of any say in the atter. 7utuality doesnot obtain in such a contract of lease of no e uality exists between thelessor and the lessee since the life of the contract is dictated solely bythe lessee.

The above can also be said of the agree ent xh. 3$3 between the parties in this case.There is no utuality and e uality between the under the afore9 uoted provisionthereof since the life and continuity of said agree ent is ade to depend as long asappellant needs plaintiff;s electric posts. $nd this is precisely why, since %2 when saidagree ent was executed and up to %2B2 when this case was finally filed by plaintiff, itcould do nothing to be released fro or ter inate said agree ent notwithstanding that itscontinued effectivity has beco e very disadvantageous and ine uitous to it due to theexpansion and increase of appellant;s telephone services within #aga City and evenoutside the sa e, without a corresponding increase in the ten (%4) telephone units beingused by plaintiff free of charge, as well as the bad and inefficient service of saidtelephones to the preEudice and inconvenience of plaintiff and its custo ers. . . . 1

Petitioners; allegations ust be upheld in this regard. $ potestative condition is a condition, the fulfill entof which depends upon the sole will of the debtor, in which case, the conditional obligation isvoid. 19 ?ased on this definition, respondent court;s finding that the provision in the contract, to wit

(a) That the ter or period of this contract shall be as long as the party of the first part(petitioner) has need for the electric light posts of the party of the second part (privaterespondent) . . ..

is a potestative condition, is correct. *owever, it ust have overlooDed the other conditions in the sa eprovision, to wit

. . . it being understood that this contract shall ter inate when for any reason whatsoever,the party of the second part (private respondent) is forced to stop, abandoned (sic) itsoperation as a public service and it beco es necessary to re ove the electric light post(sic)8

which are casual conditions since they depend on chance, ha+ard, or the will of a third person. 20 In su ,the contract is subEect to ixed conditions, that is, they depend partly on the will of the debtor and partlyon chance, ha+ard or the will of a third person, which do not invalidate the afore entionedprovision. 21 #evertheless, in view of our discussions under the first and second issues raised bypetitioners, there is no reason to set aside the uestioned decision and resolution of respondent court.

"* R H0R , the petition is hereby @ #I @. The decision of the Court of $ppeals dated 7ay &B, %22&and its resolution dated -epte ber %4, %22& are $HHIR7 @.

-0 0R@ R @.

#arvasa, C.A., Padilla, Regalado and Puno, AA., concur.


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# ?$#C

=!.R. #o. /9%&2B'. 7arch 5%, %2''.>

THE $PO!$E$ *ERNA*E AFRICA a+ $OLE A C. AFRICA a+ - e HEIR$ OF

O"INGA ONG , petitioners-appellants , vs .CALTE/ (PHIL.) INC., "ATEO*O !IREN a+ THE CO!RT OF APPEAL$ , respondents-appellees .

oss, !elph, arrascoso # Janda for the respondents.

$ernabe %frica, etc. for the petitioners.

$#LLA*!$

%. GI@ #C 8 #TRI - I# 0HHICI$/ R C0R@-8 R L1I-IT - H0R $@7I--I?I/ITK. 6 There arethree re uisites for ad issibility of evidence under -ec. 5F, Rule %&5, Rules of Court (a) that the entrywas ade by a public officer, or by another person, specially enEoined by law to do so8 (b) that it was

ade by the public officer in the perfor ance of his duties, or by such other person in the perfor ance ofa duty specially enEoined by law8 and (c) that the public officer or other person had sufficient Dnowledge ofthe facts by hi stated, which ust have been ac uired by hi personally or through official infor ation(7oran, Co ents on the Rules of Court, Gol., 5, p. 525).

&[email protected] * $R-$K R1/ 8 R P0RT- #0T C0#-I@ R @ MC PTI0# T0 * $R-$K R1/ . 6 Thereports in uestion do not constitute an exception to the hearsay rule. The facts stated therein were notac uired by the reporting officers through official infor ation, not having been given by the infor antspursuant to any duty to do so.

[email protected] [email protected] R P0RT -1?7ITT @ ?K $ P0/IC 0HHIC R I# T* P RH0R7$#C 0H *I- @1TI -. 6The report sub itted by a police officer in the perfor ance of his duties on the basis of his own personalobservation of the facts reported, ay properly be considered as an exception to the hearsay rule.

[email protected] PR -17PTI0# 0H # !/I! #C 1#@ R T* @0CTRI# 0H Res Ipsa /o uitur. 6 "here thething which caused the inEury co plained of is shown to be under the anage ent defendant or hisservants and the accident is such as in the ordinary course of things does not happen if those who haveits anage ent or control use proper care, it affords reasonable evidence, in absence of explanation bydefendant, that the accident arose fro want of care. ( F C. A. 'B, p. %%25.)

[email protected] [email protected] $PP/IC$TI0# 0H PRI#CIP/ T0 T* C$- $T ?$R. 6 The gasoline station, with all itsappliances, e uip ent and e ployees, was under the control of appellees. $ fire occurred therein andspread to and burned the neighboring houses. The persons who Dnew or could have Dnown how the firestarted were appellees and their e ployees, but they gave no explanation thereof whatsoever. It is a fairand reasonable inference that the incident happened because of want of care.

'.T0RT-8 I#T RG #TI0# 0H 1#H0R - # $#@ 1# MP CT @ C$1- . 6 The intervention of anunforeseen and unexpected cause, is not sufficient to relieve a wrongdoer fro conse uences ofnegligence, if such negligence directly and proxi ately cooperates with the independent cause in theresulting inEury. (7ac$fee et al., vs. Travers !as Corp., et al., %F5 -. ". &nd &.)

.@$7$! -8 /I$?I/ITK 0H 0"# R 0H !$-0/I# -T$TI0#8 C$- $T ?$R. 6 $ fire broDe out atthe Caltex service station. It is started while gasoline was being hosed fro a tanD into the undergroundstorage. The fire spread to and burned several neighboring houses owned by appellants. &ssue


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"hether Caltex should be held liable for the da ages caused to appellants. 'eld The uestion dependson whether the operator of the gasoline station was an independent contractor or an agent of Caltex.1nder the license agree ent the operator would pay Caltex the purely no inal su of P%.44 for the useof the pre ises and all e uip ent therein. The operator could sell only Caltex products. 7aintenance ofthe station and its e uip ent was subEect to the approval, in other words control, of Caltex. The operatorcould not assign or transfer his rights as license without the consent of Caltex. Ter ination of the contractwas a right granted only to Caltex but not to the operator. These provisions of the contract show that theoperator was virtually an e ployee of Caltex, not an independent contractor. *ence, Caltex should beliable for da ages caused to appellants.

E C I $ I O N

"A ALINTAL , J p

This case is before us on a petition for review of the decision of the Court of $ppeals, whichaffir ed that of the Court of Hirst Instance of 7anila dis issing petitioners; second a endedco plaint against respondents.

The action is for da ages under $rticles %24& and %245 of the old Civil Code. It appears that in theafternoon of 7arch %B, %2 B a fire broDe out at theCaltex service station at the corner of $ntipolo streetand Ri+al $venue, 7anila. It started while gasoline was being hosed fro a tanD trucD into theunderground storage, right at the opening of the receiving tanD where the no++le of the hose wasinserted. The fire spread to and burned several neighboring houses, including the personal properties andeffects inside the . Their owners, a ong the petitioners here, sued respondents Caltex(Phil.), Inc. and7ateo ?o uiren, the first as alleged owner of the station and the second as its agent in charge ofoperation. #egligence on the part of both of the was attributed as the cause of the fire.

The trial court and the Court of $ppeals found that petitioners failed to prove negligence and thatrespondents had exercised due care in the pre ises and with respect to the supervision of theire ployees.

The first uestion before 1s refers to the ad issibility of certain reports on the fire prepared by the 7anilaPolice and Hire @epart ents and by a certain Captain Tinio of the $r ed Horces of the Philippines.Portions of the first two reports are as follows

%.Police @epart ent Report 6

3Investigation disclosed that at about 44 P.7. 7arch %B, %2 B, while /eandro Hloreswas transferring gasoline fro a tanD trucD, plate #o. T9F&2& into underground tanD ofthe Caltex !asoline -tation located at the corner of Ri+al $venue and $ntipolo -treet,this City, an unDnown Hilipino lighted a cigarette and threw the burning atch sticD nearthe ain valve of the said underground tanD. @ue to the gasoline fu es, fire suddenlybla+ed. LuicD action of /eandro Hlores in pulling of the gasoline hose connecting thetrucD with the underground tanD prevented a terrific explosion. *owever, the fla esscattered due to the hose fro which the gasoline was spouting. It burned the trucDand the following accessories and residences.3

&.The Hire @epart ent Report 6

In connection with their allegation that the pre ises was (sic) subleased for theinstallation of a coca9cola and cigarette stand, the co plainants furnished this 0ffice a


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copy of a photograph taDen during the fire and which is sub itted herewith. It appearsin this picture that there are in the pre ises a coca9cola cooler and a racD whichaccording to infor ation gathered in the neighborhood contained cigarettes and

atches, installed between the gasoline pu ps and the underground tanDs.3

The report of Captain Tinio reproduced infor ation given by a certain ?enito 7orales regarding the

history of the gasoline station and what the chief of the fire depart ent had told hi on the sa e subEect.

The foregoing reports were ruled out as 3double hearsay3 by the Court of $ppeals and henceinad issible. This ruling is now assigned as error. It is contended first, that said reports were ad itted bythe trial court without obEection on the part of respondents8 secondly, that with respect to the police report( xhibit G9$frica) which appears signed by a @etective Napanta allegedly 3for -alvador Capacillo,3 thelatter was presented as witness but respondents waived their right to cross9exa ine hi although theyhad the opportunity to do so8 and thirdly, that in any event the said reports are ad issible as an exceptionto the hearsay rule under section 5F of Rule %&5, now Rule %54.

The first contention is not borne out by the record. The transcript of the hearing of -epte ber % , %2F5(pp. %' 9% 4) shows that the reports in uestion, when offered as evidence, were obEected to by counselfor each of respondents on the ground that they were hearsay and that they were 3irrelevant, i aterial

and i pertinent.3 Indeed, in the court;s resolution only xhibits A, O, O9F and M9' were ad itted withoutob(ection) the ad ission of the others, including the disputed ones, carried no such explanation.

0n the second point, although @etective Capacillo did taDe the witness stand, he was not exa ined andhe did not testify as to the facts entioned in his alleged report (signed by @etective Napanta.) $ll he saidwas that he was one of those who investigated 3the location of the fire and, if possible, gather witnessesas to the occurrence.3 and that he brought the report with hi . There was nothing, therefore on which heneed be cross9exa ined8 and the contents of the report, as to which he did not testify, did not therebybeco e co petent evidence. $nd even if he had testified, his testi ony would still have beenobEectionable as far as infor ation gathered by hi fro third persons was concerned.

Petitioners aintain, however, that the reports in the selves, that is, without further testi onial evidenceon their contents, fall within the scope of section 5F, Rule %&5 which provides that 3entries in officialrecords ade in the perfor ance of his duty by a public officer of the Philippines, or by a person in theperfor ance of a duty specially enEoined by law, are prima facie evidence of the facts therein stated.3

There are three re uisites for ad issibility under the rule Eust entioned (a) that the entry was ade by apublic officer, or by another person specially enEoined by law to do so8 (b) that it was ade by the publicofficer in the perfor ance of his duties, or by such other person in the perfor ance of a duty speciallyenEoined by law8 and (c) that the public officer or other person had sufficient Dnowledge of the facts by histated, which ust have been ac uired by hi personally or through official infor ation. (7oran,Co ents on the Rules of Court, Gol. 5 =%2F > p. 5B5.)

0f the three re uisites Eust stated, only the last need be considered here. 0bviously the aterial factsrecited in the reports as to the cause and circu stances of the fire were not within the personalDnowledge of the officers who conducted the investigation. "as Dnowledge of such facts, however,ac uired by the through official infor ation $s to so e facts the sources thereof are not evenidentified. 0thers are attributed to /eopoldo 7edina, referred to as an e ployee at the gas station wherethe fire occurred8 to /eandro Hlores, driver of the tanD trucD fro which gasoline was being transferred atthe ti e to the underground tanD of the station8 and to respondent 7ateo ?o uiren, who could not,according to xhibit G9$frica, give any reason as to the origin of the fire. To ualify their state ents as3official infor ation ac uired by the officers who prepared the reports, the persons who ade the


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state ents not only ust have personal Dnowledge of the facts stated but ust have the duty to givesuch state ents for record. 1

The reports in uestion do not constitute an exception to the hearsay rule the facts stated therein werenot ac uired by the reporting officers through official infor ation, not having been given by the infor antspursuant to any duty to do so.

The next uestion is whether or not, without proof as to the cause and origin of the fire, the doctrine of resipsa loquitur should apply so as to presu e negligence on the part of appellees. ?oth the trial court andthe appellate court refused to apply the doctrine in the instant case on the grounds that 3as to (its)applicability . . . in the Philippines, there see s to be nothing definite,3 and that while the rules do notprohibit its adoption in appropriate cases, 3in the case at bar, however, we find no practical use for suchdoctrine.3 The uestion deserves ore than such su ary dis issal. The doctrine has actually beenapplied in this Eurisdiction in the case of spiritu vs. Philippine Power and @evelop ent Co. (C.$. !. R.#o. /95& 09R, -epte ber &4, %2 2), wherein the decision of the Court of $ppeals was penned by 7r.Austice A.?./. Reyes now a e ber of the -upre e Court.

The facts of that case are stated in the decision as follows

3In the afternoon of 7ay F, %2 ', while the plaintiff9appellee and other co panionswere loading grass between the unicipalities of ?ay and Calauan, in the province of/aguna, with clear weather and without any wind blowing, an electric trans ission wire,installed and aintained by the defendant Philippine Power and @evelop ent Co., Inc.alongside the road, suddenly parted, and one of the broDen ends hit the head of theplaintiff as he was about to board the trucD. $s a result, plaintiff received the full shocDof , 44 volts carried by the wire and was DnocDed unconscious to the ground. Theelectric charge coursed through his body and caused extensive and serious ultipleburns fro sDull to legs, leaving the bone exposed in so e parts and causing intensepain and wounds that were not co pletely healed when the case was tried on Aune %B,%2 , over one year after the ishap.3

The defendant therein disclai ed liability on the ground that the plaintiff had failed to show any specificact of negligence but the appellate court overruled the defense under the doctrine of res ipsa loquitur . Thecourt said

3The first point is directed against the sufficiency of plaintiff;s evidence to placeappellant on its defense. "hile it is the rule, as contended by the appellant, that in caseof noncontractual negligence, or culpa aquiliana , the burden of proof is on the plaintiffto establish that the proxi ate cause of his inEury was the negligence of the defendant,it is also a recogni+ed principle that ;"here the thing which caused inEury, without faultof the inEured person, is under the exclusive control of the defendant and the inEury issuch as in the ordinary course of things does not occur if those having such control useproper care, it affords reasonable evidence, in the absence of the explanation that theinEury arose fro defendant;s want of care.;

3$nd the burden of evidence is shifted to hi to establish that he has observed duecare and diligence. (-an Auan /ight < Transit Co. vs. Re uena, && 1.-. B2, F' /. ed.'B ). This rule is Dnown by the na e of res ipsa loquitur (the transaction speaDs foritself), and is peculiarly applicable to the case at bar, where it is un uestioned that theplaintiff had every right to be on the highway, and the electric wire was under the solecontrol of defendant co pany. In the ordinary course of events, electric wires do notpart suddenly in fair weather and inEure people, unless they are subEected to unusualstrain and stress or there are defects in their installation, aintenance and supervision8

Eust as barrels do not ordinarily roll out of the warehouse windows to inEure passersby
http://www.cdasiaonline.com/search/show_article/32335?search=title%3A+(africa)+AND+title%3A+(caltex)#footnoteshttp://www.cdasiaonline.com/search/show_article/32335?search=title%3A+(africa)+AND+title%3A+(caltex)#footnotes


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unless so e one was negligent. (?yrne vs. ?oadle, & * < Co. &&8 %F2 ng. Reprint&22, the leading case that established that rule). Conse uently, in the absence ofcontributory negligence (which is ad ittedly not present) the fact that the wire snappedsuffices to raise a reasonable presu ption of negligence in the installation, care and

aintenance. Thereafter, as observed by Chief ?aron PollocD, if there are any factsinconsistent with negligence, it is for the defendant to prove.;3

It is true of course that decisions of the Court of $ppeals do not lay down doctrines binding on the-upre e Court, but we do not consider this a reason for not applying the particular doctrine of res ipsaloquitur in the case at bar. !asoline is a high>y co bustible aterial, in the storage and sale of whichextre e care ust be taDen. 0n the other hand, fire is not considered a fortuitous event, as it arisesal ost invariably fro so e act of an. $ case striDingly si ilar to the one before 1s is Aones vs. -hellPetroleu Corporation, et al., % % -o. 8

3$rthur 0. Aones is the owner of a building in the city of *a on which in the year%25 was leased to the -hell Petroleu Corporation for a gasoline filling station. 0n0ctober B, %25 , during the ter of the lease, while gasoline was being transferred,fro the tanD wagon, also operated by the -hell Petroleu Corporation, to theunderground tanD of the station, a fire started with resulting da ages to the building

owned by Aones. $lleging that the da ages to his building a ounted to QF%'.2F, Aonessued the -hell Petroleu Corporation for the recovery of that a ount. The Eudge of thedistrict court, after hearing the testi ony, concluded that plaintiff was entitled to arecovery and rendered Eudg ent in his favor for Q & .B&. The Court of $ppeals for theHirst Circuit reversed this Eudg ent, on the ground the testi ony failed to show withreasonable certainty any negligence on the part of the -hell Petroleu Corporation orany of its agents or e ployees. Plaintiff applied to this Court for a "rit of Review whichwas granted, and the case is now before us for decision.3

In resolving the issue of negligence, the -upre e Court of /ouisiana held

3Plaintiff;s petition contains two distinct charges of negligence 6 one relating to thecause of the fire and the other relating to the spreading of the gasoline about the filling

station.

30ther than an expert to asses the da ages caused plaintiff;s building by the fire, nowitnesses were placed on the stand by the defendant.

3TaDing up plaintiff;s charge of negligence relating to the cause of the fire, we find itestablished by the record that the filling station and the tanD trucD were under thecontrol of the defendant and operated by its agents or e ployees. "e further find frothe uncontradicted testi ony of plaintiff;s witnesses that fire started in the undergroundtanD attached to the filling station while it was being filled fro the tanD trucD and whileboth the tanD and the trucD were in charge of and being operated by the agents ore ployees of the defendant, extended to the hose and tanD trucD, and wasco unicated fro the burning hose, tanD trucD, and escaping gasoline to the building

owned by the plaintiff.

Predicated on these circu stances and the further circu stance of defendants failureto explain the cause of the fire or to show its lacD of Dnowledge of the cause, plaintiffhas evoDed the doctrine of res ipsa loquitur. There are any cases in which thedoctrine ay be successfully invoDed and this, we thinD, is one of the .

"here the thing which caused the inEury co plained of is shown to be under theanage ent of defendant or his servants and the accident is such as in the ordinary


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course of things does not happen if those who have its anage ent or control useproper care, it affords reasonable evidence, in absence of explanation by defendant,that the accident arose fro want of care. ( F C. A. 'B, p. %%25).

3This state ent of the rule of res ipsa loquitur has been widely approved and adoptedby the courts of last resort. -o e of the cases in this Eurisdiction in which the doctrine

has been applied are the following, vi+.8 7aus vs. ?rodericD, F% /a. $nn. %%F5, &F -o.2 8 *ebert vs . /aDe Charles Ice etc., Co., %%% /a. F&&, 5F -o. 5%, ' /.R.$. %4%, %44 $ . -t. Rep. F4F8 "illis vs. GicDsburg, etc., R. Co., %%F /a. F5, 5B -o. B2&8?ents, vs. Page, %%F /a. F'4, 52 -o. F22.3

The principle enunciated in the afore uoted case applies with e ual force here. The gasoline station, withall its appliances, e uip ent and e ployees, was under the control of appellees. $ fire occurred thereinand spread to and burned the neighboring houses. The persons who Dnew or could have Dnown how thefire started were appellees and their e ployees, but they gave no explanation thereof whatsoever. It is afair and reasonable inference that the incident happened because of want of care.

In the report sub itted by Captain /eoncio 7ariano of the 7anila Police @epart ent ( xh. M9% $frica) thefollowing appears

3Investigation of the basic co plaint disclosed that the Caltex !asoline -tationco plained of occupies a lot approxi ately %4 x %4 at the southwest corner ofRi+al $venue and $ntipolo. The location is within a very busy business district near the0brero 7arDet, a railroad crossing and very thicDly populated neighborhood where agreat nu ber of people ill around throughout the day until late at night. Thecircu stances put the gasoline station in a situation pri arily preEudicial to its operationbecause the passersby, those waiting for buses or transportation, those waiting tocross the streets and others loafing around have to occupy not only the sidewalDs butalso portion of the gasoline station itself. "hatever be the activities of these peoples oDing or lighting a cigarette cannot be excluded and this constitute a secondaryha+ard to its operation which in turn endangers the entire neighborhood toconflagration.

3Hurther ore, aside fro precautions already taDen by its operator the concrete wallssouth and west adEoining the neighborhood are only & %J& eters high at ost andcannot avoid the fla es fro leaping over it in case of fire.

3Records show that there have been two cases of fire which caused not only aterialda ages but desperation and also panic in the neighborhood.

3$lthough the soft drinDs stand had been eli inated, this gasoline service station is alsoused by its operator as a garage and repair shop for his fleet of taxicabs nu bering tenor ore, adding another risD to the possible outbreaD of fire at this already s all butcrowded gasoline station.3

The foregoing report, having been sub itted by a police officer in the perfor ance of his duties on thebasis of his own personal observation of the facts reported, ay properly be considered as an exceptionto the hearsay rule. Those facts, descriptive of the location and obEective circu stances surrounding theoperation of the gasoline station in uestion, strengthen the presu ption of negligence under the doctrineof res ipsa loquitur, since on their face they called for ore stringent easures of caution than thosewhich would satisfy the standard of due diligence under ordinary circu stances. There is no oreelo uent de onstration of this than the state ent of /eandro Hlores before the police investigator. Hlores


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was the driver of the gasoline tanD wagon who, alone and without assistance, was transferring thecontents thereof into the underground storage when the fire broDe out. *e said 3?efore loading theunderground tanD there were no people, but while the loading was going on, there were people who wentto drinD coca9cola (at the coca9cola stand) which is about a eter fro the hole leading to theunderground tanD.3 *e added that when the tanD was al ost filled he went to the tanD trucD to close thevalve, and while he had his bacD turned to the 3 anhole3 he heard so eone shout 3fire.3

ven then the fire possibly would not have spread to the neighboring houses were it not for anothernegligent o ission on the part of defendants, na ely, their failure to provide a concrete wall high enoughto prevent the fla es fro leaping over it. $s it was the concrete wall was only & %J& eters high, andbeyond that height it consisted erely of galvani+ed iron sheets, which would predictably cru ple and

elt when subEected to intense heat. @efendants; negligence, therefore, was not only with respect to thecause of the fire but also with respect to the spread thereof to the neighboring houses.

There is an ad ission on the part of ?o uiren in his a ended answer to the second a ended co plaintthat 3the fire was caused through the acts of a stranger who, without authority, or per ission of answeringdefendant, passed through the gasoline station and negligently threw a lighted atch in the pre ises.3#o evidence on this point was adduced, but assu ing the allegation to be true 6 certainly anyunfavorable inference fro the ad ission ay be taDen against ?o uiren 6 it does not extenuate his

negligence. $ decision of the -upre e Court of Texas, upon facts analogous to those of the presentcase, states the rule which we find acceptable here 3It is the rule that those who distribute a dangerousarticle or agent owe a degree of protection to the public proportionate to and co ensurate with a dangerinvolved . . . we thinD it is the generally accepted rule as applied to torts that ;if the effects of the actor;snegligent conduct actively and continuously operate to bring about har to another, the fact that theactive and substantially si ultaneous operation of the effects of a third person;s innocent, tortious orcri inal act is also a substantial factor in bringing about the har , does not protect the actor fro liability.;(Restate ent of the /aw of Torts, vol. &, p. %%B , 52. -tated in another way, ;The intervention of anunforeseen and unexpected cause, is not sufficient to relieve a wrongdoer fro conse uences ofnegligence, if such negligence directly and proxi ately cooperates with the independent cause in theresulting inEury.; (7ac$fee et al. vs. Traver;s !as Corp., et al., %F5 -.". &nd &.)

The next issue is whether Caltex should be held liable for the da ages caused to appellants. This issue

depends on whether ?o uiren was an independent contractor, as held by the Court of $ppeals, or anagent of Caltex. This uestion, in the light of the facts not controverted, is one of law and hence ay bepassed upon by this Court. These facts are %) ?o uiren ade an ad ission that he was an agentof Caltex8 (&) at the ti e of the fire Caltex owned the gasoline station and all the e uip ent therein8(5) Caltex exercised control over ?o uiren in the anage ent of the station8 ( ) the delivery trucD used indelivering gasoline to the station had the na e C$/T M painted on it8 and (F) the license to storegasoline at the station was in the na e of Caltex, which paid the license fees. ( xhibit T9$frica8 xhibit 19

$frica8 xhibit M9F $frica8 xhibit M9' $frica8 xhibit K9$frica).

In ?o uiren;s a ended answer to the second a ended co plaint, he denied that he directed one of hisdrivers to re ove gasoline fro the trucD into the tanD and alleged that the 3alleged driver, if one therewas, was not in his e ploy, the driver being an e ployee of the Caltex (Phil.) Inc. andJor the owners ofthe gasoline station.3 It is true that ?o uiren later on a ended his answer, and that a ong the changeswas one to the effect that he was not acting as agent of Caltex. ?ut then again, in his otion to dis issappellants; second a ended co plaint the ground alleged was that it stated no cause of action sinceunder the allegations thereof he was erely acting as agent of Caltex, such that he could not haveincurred personal liability. $ otion to dis iss on this ground is dee ed to be an ad ission of the factsalleged in the co plaint.

Caltex ad its that it owned the gasoline station as well as the e uip ent therein, but clai s that thebusiness conducted at the service station in uestion was owned and operated by ?o uiren.?ut Caltex did not present any contract with ?o uiren that would reveal the nature of their relationship atthe ti e of the fire. There ust have been one in existence at that ti e. Instead, what was presented was


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a license agree ent anifestly tailored for purposes of this case, since it was entered into shortly beforethe expiration of the one9 year period it was intended to operate. This so9called license agree ent( xhibit F9Caltex) was executed on #ove ber &2, %2 B, but ade effective as of Aanuary %, %2 B so asto cover the date of the fire, na ely, 7arch %B, %2 B. This retroactivity provision is uite significant, andgives rise to the conclusion that it was designed precisely to free Caltex fro any responsibility withrespect to the fire, as shown by the clause that Caltex 3shall not be liable for any inEury to person orproperty while in the property herein licensed, it being understood and agreed that /IC #- (?o uiren)is not an e ployee, representative or agent of /IC #-0R (Caltex).3

?ut even if the license agree ent were to govern, ?o uiren can hardly be considered an independentcontractor. 1nder that agree ent ?o uiren would pay Caltex the purely no inal su of P%.44 for the useof the pre ises and all the e uip ent therein. *e could sell only Caltex products. 7aintenance of thestation and its e uip ent was subEect to the approval, in other words control, of Caltex. ?o uiren couldnot assign or transfer his rights as licensee without the consent of Caltex. The license agree ent wassupposed to be fro Aanuary %, %2 B to @ece ber 5%, %2 B, and thereafter until ter inatedbyCaltex upon two days prior written notice. Caltex could at any ti e cancel and ter inate the agree entin case ?o uiren ceased to sell Caltex products, or did not conduct the business with due diligence, in the

(udgment of altex. Ter ination of the contract was therefore a right granted only to Caltex but not to?o uiren. These provisions of the contract show the extent of the control of Caltex over ?o uiren. Thecontrol was such that the latter was virtually an e ployee of the for er.

3TaDing into consideration the fact that the operator owed his position to the co panyand the latter could re ove hi or ter inate his services at will8 that the service stationbelonged to the co pany and bore its tradena e and the operator sold only theproducts of the co pany8 that the e uip ent used by the operator belonged to theco pany and were Eust loaned to the operator and the co pany tooD charge of theirrepair and aintenance8 that an e ployee of the co pany supervised the operator andconducted periodic inspection of the co pany;s gasoline and service station8 that theprice of the products sold by the operator was fixed by the co pany and not by theoperator8 and that the receipts signed by the operator indicated that he was a ereagent, the finding of the Court of $ppeals that the operator was an agent of theco pany and not an independent contractor should not be disturbed.

3To deter ine the nature of a contract courts do not have or are not bound to rely uponthe na e or title given it by the contracting parties, should there be a controversy as towhat they really had intended to enter into, but the way the contracting parties do orperfor their respective obligations stipulated or agreed upon ay be shown andin uired into, and should such perfor ance conflict with the na e or title given thecontract by the parties, the for er ust prevail over the latter.3 -hell Co pany of thePhilippines, /td. vs. Hire en;s Insurance Co pany of #ewarD, #ew Aersey, %44 Phil.

F ).

3The written contract was apparently drawn for the purpose of creating the apparentrelationship of e ployer and independent contractor, and of avoiding liability for thenegligence of the e ployees about the station8 but the co pany was not satisfied toallow such relationship to exist. The evidence shows that it i ediately assu edcontrol, and proceeded to direct the ethod by which the worD contracted for should beperfor ed. ?y reserving the right to ter inate the contract at will, it retained the eansof co pelling sub ission to its orders. *aving elected to assu e control and to directthe eans and ethods by which the worD has to be perfor ed, it ust be held liablefor the negligence of those perfor ing service under its direction. "e thinD theevidence was sufficient to sustain the verdict of the Eury.3 (!ulf RefiningCo pany vs. Rogers F -.". &d %B5).


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Caltex further argues that the gasoline stored in the station belonged to ?o uiren. ?ut no cash invoiceswere presented to show that ?o uiren had bought said gasoline fro Caltex. #either was there a salescontract to prove the sa e.

$s found by the trial court the $fricas sustained a loss of P2,44F.B4, after deducting the a ount ofP&,444.44 collected by the on the insurance of the house. The deduction is now challenged as

erroneous on the ground that $rticle &&4 of the new Civil Code, which provides for the subrogation of theinsurer to the rights of the insured, was not yet in effect when the loss tooD place. *owever, regardless ofthe silence of the law on this point at that ti e, the a ount that should be recovered ust be easuredby the da ages actually suffered, otherwise the principle prohibiting unEust enrich ent would be violated."ith respect to the clai of the heirs of 0ng, P ,F44.44 was adEudged by the lower court on the basis ofthe assessed value of the property destroyed na ely, P%,F44.44, disregarding the testi ony of one of the0ng children that said property was worth P ,444.44. "e agree that the court erred, since it is of co onDnowledge that the assess ent for taxation purposes is not an accurate gauge of fair arDet value, andin this case should not prevail over positive evidence of such value. The heirs of 0ng are thereforeentitled to P%4,444.44.

"herefore, the decision appealed fro is reversed and respondents9 appellees are held liable solidarily toappellants, and ordered to pay the the aforesaid su s of P2,44F.B4 and P%4,444.44, respectively, with

interest fro the filing of the co plaint, and costs.

$eng*on, .J., $autista %ngelo, oncepcion, eyes, J.$.+., $arrera, egala, $eng*on, J. . and aldivar,JJ., concur.

i*on, J., tooD no part.

- C0#@ @IGI-I0#

=!.R. #o. %&&%2F. Auly &5, %22B.>

NATIONAL PO ER CORPORATION , petitioner , vs . CO!RT OF APPEAL$ a+ENNI$ COO , respondents .

/he !olicitor 0eneral for petitioner.

!egundo 1. hua for private respondent.

$#NOP$I$

Private respondent @ennis Coo purchased six (') tons of assorted scrap alu inu wires and alliedaccessories fro the #ew $lloy 7etal Co pany in 7anila. The goods, however, were sei+ed by ele entsof the 55%st PC fro Coos residence and deposited in the PC head uarters. The PC ProvincialCo ander filed a cri inal co plaint against Coo for violation of the anti9fencing law. *owever, theInvestigating Hiscal dis issed it for insufficiency of evidence. 1pon representation of petitioner #PC, theco plaint was re9investigated, resulting in the filing of an Infor ation before the Regional Trial Court of?acolod City. The trial court rendered a decision ac uitting Coo on the ground that the wares belonged tohi . #otwithstanding this decision, petitioner got the property fro the PC *ead uarters. Coo de andedthe return of the wares, which #PC refused. Coo filed a co plaint for replevin against #PC and itsofficers. $fter trial, Coo was declared the owner and possessor of the alu inu wires and alliedaccessories. 0n appeal, the Court of $ppeals affir ed the trial courts decision with the odification that


23/55

the #PC;s officers were absolved fro any liability in their personal capacity. #PC was ordered to payno inal da ages and attorneys fees. #PC oved for reconsideration but it was denied. *ence, thispetition for review on certiorari .

$nent the re uire ent that the personal property be unlawfully detained by another not entitled to itspossession, it is to be re e bered that petitioner#PC was the co plainant in the cri inal case against

private respondent and, as such, Dnew of the decision in the case. ?ecause of the said decision, privaterespondent Coo should have been given possession of the subEect property. *owever,petitioner #PC refused to relin uish possession of the sa e after the decision in the cri inal casedeclaring Coo to be owner of the goods. It is thus wrongfully withholding possession of the property, thusentitling private respondent to the writ of replevin. In view of the foregoing, the contention that the Court of

$ppeals erred in not awarding expenses of litigation and attorneys fees in favor of petitioner #PC isclearly without erit.

$#LLA*!$

%.R 7 @I$/ /$"8 GI@ #C 8 HI#@I#!- 0H H$CT 0H T* C01RT 0H $PP $/-8 ?I#@I#! $#@C0#C/1-IG 1P0# T* -1PR 7 C01RT, $- $ ! # R$/ R1/ 8 MC PTI0# #0T PR - #TI# C$- $T ?$R. 6 $s a general rule, findings of fact of the Court of $ppeals are binding andconclusive upon the -upre e Court, and the Court will not nor ally disturb such factual findings unlessthe findings of the court are palpably unsupported by the evidence on record or unless the Eudg ent itselfis based on a isapprehension of facts. The present case not falling under the exceptions, the generalrule applies.

&[email protected] [email protected] PR P0#@ R$#C 0H GI@ #C , C0#-TR1 @. 6 $s against docu ents presented bythe private respondent and the Eudg ent in the cri inal case ac uitting hi , the petitioner presented onlyits e ployees whose testi onies consisted erely of assu ptions and opinions. ?y preponderance ofevidence is eant si ply evidence which is of greater weight, or ore convincing than that which isoffered in opposition to it. Clearly, private respondent Coo has provided evidence of greater weight thanthe petitioner relevant to the deter ination of who is entitled to the possession of the subEect property.

[email protected] $CTI0#8 R P/ GI#8 #$T1R T* R 0H C0#-TR1 @8 C$- $T ?$R. 6 In a case forreplevin, it is sufficient that the plaintiff prove entitle ent to legal possession. It is not necessary to proveownership. It is worth stressing at this point, that a suit for replevin is founded solely on the clai that thedefendant wrongfully withholds the property sought to be recovered. It lies to recover possession ofpersonal chattels that are unlawfully detained. 3To detain3 is defined as to ean 3to hold or Deep incustody,3 and it has been held that there is tortious taDing whenever there is an unlawful eddling withthe property, or an exercise or clai of do inion over it, without any pretense of authority or right8 this,without anual sei+ing of the property is sufficient. 1nder the Rules of Court, it is indispensable inreplevin proceeding that the plaintiff ust show by his own affidavit that he is entitled to the possession ofproperty, that the property is wrongfully detained by the defendant, alleging the cause of detention, thatthe sa e has not been taDen for tax assess ent, or sei+ed under execution, or attach ent, or if sosei+ed, that it is exe pt fro such sei+ure, and the actual value of the property. $ perusal of the way billshows that the consignee is private respondent. *ence, it is sufficient to support the clai that private

respondent is entitled to a writ of replevin. It is evidence that he is entitled to the possession of theproperty subEect of this case.

.CIGI/ /$"8 @$7$! -8 #07I#$/ @$7$! -8 "* # #TIT/ @8 C$- $T ?$R. 6 $fter privaterespondent Coo had shown that he was entitled to possession of the property, it beca e the duty ofpetitioner to yield possession of the goods. $rticle &&&% of the Civil Code provides $rt. &&&%. #o inalda ages are adEudicated in order that a right of the plaintiff, which has been violated or invaded by thedefendant, ay be vindicated or recogni+ed, and not for the purpose of inde nifying the plaintiff for anyloss suffered by hi . ?ased on this provision, petitioner is liable to private respondent for no inal


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da ages. #or did the Court of $ppeals err in awarding attorney;s fees to private respondent, consideringthat petitioner;s refusal to return the property co pelled private respondent to incur expenses to protecthis interest. 7oreover, petitioner acted in gross and evident bad faith in refusing to satisfy privaterespondent;s plainly valid, Eust, and de andable clai .

E C I $ I O N

"EN O3A , J p

Petitioner seeDs a review of the decision 1 of the Court of $ppeals which affir ed with odification thedecision of the Regional Trial Court of ?acolod City, ?ranch F%, and the subse uent resolution whichdenied petitioner;s otion for reconsideration. //phil

It appears that on Auly &5, %2B , private respondent @ennis Coo purchased six (') tons of assorted scrapalu inu wires and allied accessories fro the #ew $lloy 7etal Co pany in 7anila. The assorted goodswere shipped to ?acolod City and were there received by Coo on Auly 54, %2B . *owever, the next day,Auly 5%, %2B , the goods were sei+ed by ele ents of the 55%st PC fro Coo;s residence and deposited inthe PC head uarters. 2

0n $ugust ', %2B , the PC Provincial Co ander filed a cri inal co plaint against Coo for violation ofthe anti9fencing law. *owever, the Investigating Hiscal dis issed it for insufficiency of evidence. & 1ponrepresentation of petitioner #PC, the co plaint was re9investigated, 4 resulting in the filing of anInfor ation before the Regional Trial Court of ?acolod City, ?ranch B.

0n $ugust &5, %2BF, the trial court rendered a decision ac uitting Coo on the ground that the waresbelonged to hi . ' #otwithstanding this decision, petitioner got the property fro the PC*ead uarters. Private respondent wrote petitioner #PC de anding the return of the wares. ?ecause ofpetitioner;s refusal to return the subEect property, private respondent Coo filed a co plaint for replevinagainst #PC and its officers in the Regional Trial Court of ?acolod City. 7

$fter posting a surety bond for P%&4,444.44, Coo was able to obtain possession of the sei+ed ite s on $ugust F, %2B'. $fter trial, Coo was declared the owner and possessor of the alu inu wires and alliedaccessories. 9

0n appeal, the Court of $ppeals affir ed the trial court;s decision with the odification that $lfredo $r+aga, Ar. and Nosi o ?riones, #PC;s ?ranch 7anager and #PC;s officer9in9charge for #egros0ccidental, respectively, were absolved fro any liability in their personal capacity and the awards ofco pensatory and oral da ages were deleted. Instead, #PC was ordered to pay no inal da ages andattorney;s fees. 10

#PC oved for reconsideration but its otion was denied. *ence, this petition for review on certiorari. 11

Petitioner contends that the Court of $ppeals erred in relying on the decision in the cri inal caseac uitting @ennis Coo for its ruling that the alu inu conductor wires in uestion belonged to hi .Petitioner clai s that the ac uittal was based on reasonable doubt and, therefore, was not conclusive ofthe ownership of the goods. 0n the other hand, according to petitioner, the following facts support itsclai that the alu inu wires bought by Coo fro the #ew $lloy 7etal Co pany were different frothose sei+ed by the PC fro Coo and delivered to #PC 12
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