Bachrach Motor Co vs Espiritu (Civil Law)

G.R. No. L-28497             November 6, 1928

THE BACHRACH MOTOR CO., INC., plaintiff-appellee, vs. FAUSTINO ESPIRITU, defendant-appellant.

------------------------------

G.R. No. L-28498             November 6, 1928

THE BACHRACH MOTOR CO., INC., plaintiff-appellee, vs. FAUSTINO ESPIRITU, defendant-appellant, and ROSARIO ESPIRITU, intervenor-appellant.

--Should there be an agreement for a penalty aside from the interest, each may be demanded separately.

AVANCEÑA, C. J.:

FACTS:

In case 28497, on July 28, 1925, defendant Faustino Espiritu purchased from Bachrach a two-ton White truck for P11,983.50, paying P1,000 downpayment, and obligating himself to pay the remaining P10,983.50 within the periods agreed upon. To secure the payment of this sum, the defendants mortgaged the said truck purchased and, besides, three others, two of which are f the same White model. These two trucks had been purchased from the same plaintiff and were fully paid for by the defendant and his brother Rosario Espiritu. Faustino failed to pay he balance of the price secured by this mortgage.

In connection with case 28498, on February 18, 1925 the Faustino bought a one-ton White truck of the plaintiff corporation for the sum of P7,136.50, and after having deducted the P500 cash payment and the 12% annual interest on the unpaid principal, obligated himself to make payment of this sum within the periods agreed upon. To secure this payment the defendant mortgaged to Bachrach the said truck purchased and two others, numbered 77197 and 92744, respectively, the same that were mortgaged in the purchase of the other truck referred to in the other case. The defendant failed to pay P4,208.28 of this sum.

In both sales it was agreed that 12% interest would be paid upon the unpaid portion of the price at the executon of the contracts, and in case of non-payment of the total debt upon its maturity, 25 per cent thereon, as penalty.

In addition to the mortagage deeds, Faustino also signed a promissory note solidarily with his brother Rosario Espiritu for the several sums secured by the two mortgages (Exhibits B and D).

Rosario appeared in these two cases as intervenor, alleging to be the exclusive owner of the two White trucks Nos. 77197 and 92744, which appear to have been mortgaged by the defendants to the plaintiff. l

While these two cases were pending in the lower court, the mortgaged trucks were sold by virtue of the mortgage, all of them together bringing in, after deducting the sheriff's fees and transportation charges to Manila, the net sum of P3,269.58.

The judgment appealed from ordered the defendants and the intervenor to pay plaintiff in case 28497 the sum of P7,732.09 with interest at the rate of 12% per annum from May 1, 1926 until fully paid, and 25 per cent thereof in addition as penalty. In case 28498, the trial court ordered the defendant and the intervenor to pay plaintiff the sum of P4,208.28 with interest at 12% per annum from December 1, 1925 until fully paid, and 25% thereon as penalty.

Faustino and Rosario contend that trucks 77197 and 92744 were not mortgaged, because, when the defendant signed the mortgage deeds these trucks were not included in those documents, and were only put in later, without defendant's knowledge. They also alleged that on February 4, 1925, the Faustino sold his rights in said 2 trucks to Rosario, and that as the latter did not sign the mortgage deeds, such trucks cannot be considered as mortgaged.

It is finally contended that the 25% penalty upon the debt, in addition to the interest of 12% per annum, makes the contract usurious.

ISSUE:

WON the 25% penalty upon the debt, in addition to the interest of 12% per annum, makes the contract usurious

HELD: NO

Article 1152 of the Civil Code permits the agreement upon a penalty apart from the interest. Should there be such an agreement, the penalty, as was held in the case of Lopez vs. Hernaez (32 Phil., 631), does not include the interest, and which may be demanded separately. According to this, the penalty is not to be added to the interest for the determination of whether the interest exceeds the rate fixed by the law, since said rate was fixed only for the interest.

But considering that the obligation was partly performed, and making use of the power given to the court by article 1154 of the Civil Code, this penalty is reduced to 10% of the unpaid debt. With the sole modification that instead of 25% upon the sum owed, the defendants need pay only 10% thereon as penalty, the judgment appealed from is affirmed in all other respects without special pronouncement as to costs. So ordered.

*as to the other contentions of the Espiritu brothers, the SC did not find their statements credible. The Court held that Rosario knew of the mortgages and consented to the same as he signed, together with his brother, the 2 promissory notes secured by the mortgages. Such facts were supported by the testimonies of Bachrach’s witnesses, and a comparison of Rosario’s signatures.