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G.R. No. L-12579 July 27, 1918

GREGORIO JIMENEZ, plaintiff-appellee, vs.PEDRORABOT, NICOLASA JIMENEZ and her husbandEMILIO RODRIGUEZ, defendants. PEDRO RABOT,appellant.

Antonio Bengson for appellant.Jose Rivera for appellee.

STREET,J.:

This action was instituted by the plaintiff, GregorioJimenez, to recover from the defendant, Pedro Rabot, aparcel of land situated in the municipality of Alaminos,in the Province of Pangasinan, and described in thecomplaint as follows:

Approximate area of three hectares; bounded on thenorth and west with land of Pedro Reynoso, on thesouth with land of Nicolasa Jimenez, and on the eastwith land of Calixta Apostol before, at present withthat of Juan Montemayor and Simon del Barrio. It issituated in Dinmayat Tancaran, barrio of Alos of thissame municipality of Alaminos, Pangasinan.

From a judgment rendered in favor of the plaintiff,Pedro Rabot has appealed; but his co-defendants,Nicolasa Jimenez and her husband, who were cited bythe defendant for the purpose of holding her liable

upon her warranty in case of his eviction, have notappealed.

It is admitted that the parcel of land in question,together with two other parcels in the same localityoriginally belonged of the heirs in the division of theestate of his father. It is further appears that whileGregorio was staying at Vigan, in the Province of IlocosSur, during the year 1911, his property in Alaminoswas confided by him to the care of his elder sisterNicolasa Jimenez. On February 7 of that year he wrote

this sister a letter from Vigan in which he informed her

that he was pressed for money and requested her tosell one of his parcels of land and send him the moneyin order that he might pay his debts. This lettercontains no description of the land to be sold otherthan is indicated in the words "one of my parcels ofland" ("uno de mis terrenos").

Acting upon this letter Nicolasa approached the

defendant Pedro Rabot, and the latter agreed to buythe parcel in question for the sum of P500. Twohundred and fifty peso were paid at once, with theunderstanding that a deed of conveyance would beexecuted when the balance should be paid. Nicolasaadmits having received this payment of P250 at thetime stated; but there is no evidence that she sent anyof it to her brother.

About one year later Gregorio came down to Alaminosand demanded that his sister should surrender this

piece of land to him, it being then in her possession.She refused upon some pretext or other to do so; andas a result Gregorio, in conjunction with others of hisbrothers and sisters, whose properties were also in thehands of Nicolasa, instituted an action in the Court ofFirst Instance for the purpose of recovering their landfrom her control. This action was decided favorably tothe plaintiffs upon August 12, 1913; and no appeal wastaken from the judgment.

Meanwhile, upon May 31, 1912, Nicolasa Jimenezexecuted and delivered to Pedro Rabot a deedpurporting to convey to him the parcel of land which isthe subject of this controversy. The deed recites thatthe sale was made in consideration of the sum ofP500, the payment of which is acknowledged. PedroRabot went into possession, and the property wasfound in his hands at the time when final judgmentwas entered in favor of the plaintiffs in the actionabove mentioned. It will thus be seen that Pedro Rabotacquired possession under the deed from Nicolasa

during the pendency of the litigation appear that he

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was at the time cognizant of that circumstance.

In considering the questions presented by this appealone or two preliminary observations may be made.The first is that, as a matter of formality, a power ofattorney to convey real property ought to appear in apublic document, just as any other instrumentintended to transmit or convey an interest in such

property ought to appear in a public document. (Art.1280, Civil Code.) But inasmuch as it is an establisheddoctrine that a private document is competent tocreate, transmit, modify, or extinguish a right in realproperty (Thunga Chui vs. Que Bentec, 2 Phil. Rep.,561; Couto Soriano vs. Cortes, 8 Phil. Rep., 459), itfollows that a power of attorney to convey suchproperty, even though in the form of a privatedocument, will operate with effect. Again, supposingthat the letter contained adequate authority forNicolasa to sell the property in question, her action in

conveying the property in her own name, withoutshowing the capacity in which she acted, wasdoubtless irregular. Nevertheless, such deed would inany event operate to bind her brother, the plaintiff inits character as a contract (Lyon vs. Pollock, 99 U.S.,668; 25 L. ed., 265), and supposing that the authoritywas sufficient, he could be compelled by a proper judicial proceeding to execute a document to carrysuch contract into effect. (Art. 1279, Civil Code.)

The principal question for consideration therefore inthe end resolves itself into this, whether the authority

conferred on Nicolasa by the letter of February 7,1911, was sufficient to enable her to bind her brother.The only provisions of law bearing on this point arecontained in article 1713 of the Civil Code and insection 335 of the Code of Civil Procedure. Article 1713of the Civil Code requires that the authority to alienateland shall be contained in an express mandate; whilesubsection 5 of section 335 of the Code of CivilProcedure says that the authority of the agent must bein writing and subscribed by the party to be charged.We are of the opinion that the authority expressed in

the letter is a sufficient compliance with bothrequirements.

It has been urged here that in order for the authorityto be sufficient under section 335 of the Code of CivilProcedure the authorization must contain a particulardescription of the property which the agent is to bepermitted to sell. There is no such requirement in

subsection 5 of section 335; and we do not believethat it would be legitimate to read such a requirementinto it. The purpose in giving a power of attorney is tosubstitute the mind and hand of the agent for the mindand hand of the principal; and if the character andextent of the power is so far defined as to leave nodoubt as to the limits within which the agent isauthorized to act, and he acts within those limits, theprincipal cannot question the validity of his act. It isnot necessary that the particular act to beaccomplished should be predestinated by the

language of the power. The question to be answeredalways, after the power has been exercised, is ratherthis: Was the act which the agent performed within thescope of his authority? In the case before us, if thequestion is asked whether the act performed byNicolasa Jimenez was within the scope of the authoritywhich had been conferred upon her, the answer mustbe obviously in the affirmative.

It should not escape observation that the problem withwhich we are here concerned relates to the sufficiencyof the power of attorney under subsection 5 of section

335 of the Code of Civil Procedure and not to thesufficiency of the note or memorandum of thecontract, or agreement of sale, required by the samesubsection, in connection with the first paragraph ofthe same section. It is well-settled in the jurisprudenceof England and the United States that when the owner,or his agent, comes to make a contract to sell, or aconveyance to effect a transfer, there must be adescription of the property which is the subject of thesale or conveyance. This is necessary of course todefine the object of the contract. (Brockway vs. Frost,

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40 Minn., 155; Carr vs. Passaic Land etc. Co., 19 N. J.Eq., 424; Lippincott vs. Bridgewater, 55 N. J. Eq., 208;Craig vs. Zelian, 137 Cal., 105; 20 Cyc., 271.)

The general rule here applicable is that the descriptionmust be sufficiently definite to identify the land eitherfrom the recitals of the contract or deed or fromexternal facts referred to in the document, thereby

enabling one to determine the identity of the land andif the description is uncertain on its face or is shown tobe applicable with equal plausibility to more than onetract, it is insufficient. The principle embodied in thesedecisions is not, in our opinion, applicable to thepresent case, which relates to the sufficiency of theauthorization, not to the sufficiency of the contract orconveyance. It is unquestionable that the deed whichNicolasa executed contains a proper description of theproperty which she purported to convey.

There is ample authority to the effect that a personmay by a general power of attorney an agent to sell"all" the land possessed by the principal, or all that hepossesses in a particular city, county, or state. (Ropervs. McFadden, 48 Cal., 346; Rownd vs. Davidson, 113La., 1047; Carson vs. Ray, 52 N. C., 609; 78 Am. Dec.,267; 31 Cyc., 1229.) It is also held that where a personauthorizes an agent to sell a farm ("my farm") in acertain county, this is sufficient, if it be shown thatsuch party has only one farm in that country. (Marrinervs. Dennison, 78 Cal., 202.) In Linton vs. Moorhead(209 Pa. St., 646), the power authorized the agent tosell or convey "any or all tracts, lots, or parcels" ofland belonging to the plaintiff. It was held that this wasadequate. In Lyon vs. Pollock (99 U.S., 668), the ownerin effect authorized an agent to sell everything he hadin San Antonio Texas. The authority was heldsufficient. In Linan vs. Puno (31 Phil. Rep., 259), theauthority granted was to the effect that the agentmight administer "the interests" possessed by theprincipal in the municipality of Tarlac and to that endhe was authorized to purchase, sell, collect, and pay,etc. It was held that this was a sufficient power.

In the present case the agent was given the power tosell either of the parcels of land belonging to theplaintiff. We can see no reason why the performanceof an act within the scope of this authority should notbind the plaintiff to the same extent as if he had giventhe agent authority to sell "any or all" and she hadconveyed only one.

From what have been said it is evident that the lowercourt should have absolved the defendant Pedro Rabotfrom the complaint. Judgment will accordingly bereversed, without any express adjudication of coststhis instance. So ordered.

Torres, Johnson, Malcolm, Avancea and Fisher, JJ.,concur.

G.R. No. 102784 February 28, 1996

ROSA LIM, petitioner, vs.COURT OF APPEALS andPEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

HERMOSISIMA, JR.,J.:

This is a petition to review the Decision of the Court ofAppeals in CA-G.R. CR No. 10290, entitled "People v.Rosa Lim," promulgated on August 30, 1991.

On January 26, 1989, an Information for Estafa wasfiled against petitioner Rosa Lim before Branch 92 ofthe Regional Trial Court of Quezon City.1 TheInformation reads:

That on or about the 8th day of October 1987, inQuezon City, Philippines and within the jurisdiction ofthis Honorable Court, the said accused with intent togain, with unfaithfulness and/or abuse of confidence,did, then and there, wilfully, unlawfully and feloniously

defraud one VICTORIA SUAREZ, in the following

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manner, to wit: on the date and place aforementionedsaid accused got and received in trust from saidcomplainant one (1) ring 3.35 solo worth P169,000.00,Philippine Currency, with the obligation to sell thesame on commission basis and to turn over theproceeds of the sale to said complainant or to returnsaid jewelry if unsold, but the said accused once inpossession thereof and far from complying with her

obligation despite repeated demands therefor,misapplied, misappropriated and converted the sameto her own personal use and benefit, to the damageand prejudice of the said offended party in the amountaforementioned and in such other amount as may beawarded under the provisions of the Civil Code.

CONTRARY TO LAW.2

After arraignment and trial on the merits, the trialcourt rendered judgment, the dispositive portion of

which reads:

WHEREFORE, in view of the foregoing, judgment ishereby rendered:

1. Finding accused Rosa Lim GUILTY beyondreasonable doubt of the offense of estafa as definedand penalized under Article 315, paragraph 1(b) of theRevised Penal Code;

2. Sentencing her to suffer the Indeterminate penaltyof FOUR (4) YEARS and TWO (2) MONTHS of prisioncorreccional as minimum, to TEN (10) YEARS ofprisionmayoras maximum;

3. Ordering her to return to the offended party Mrs.Victoria Suarez the ring or its value in the amount ofP169,000 without subsidiary imprisonment in caseinsolvency; and

4. To pay costs.3

On appeal, the Court of Appeals affirmed the judgmentof conviction with the modification that the penaltyimposed shall be six (6) years, eight (8) months andtwenty-one (21) days to twenty (20) years inaccordance with Article 315, paragraph 1 of theRevised Penal Code.4

Petitioner filed a motion for reconsideration before the

appellate court on September 20, 1991, but themotion was denied in a Resolution dated November11, 1991.

In her final bid to exonerate herself, petitioner filed theinstant petition for review alleging the followinggrounds:

I

THE RESPONDENT COURT VIOLATED THECONSTITUTION, THE RULES OF COURT AND THEDECISION OF THIS HONORABLE COURT IN NOTPASSING UPON THE FIRST AND THIRD ASSIGNEDERRORS IN PETITIONER'S BRIEF;

II

THE RESPONDENT COURT FAILED TO APPLY THEPRINCIPLE THAT THE PAROL EVIDENCE RULE WASWAIVED WHEN THE PRIVATE PROSECUTOR CROSS-

EXAMINED THE PETITIONER AND AURELIA NADERAAND WHEN COMPLAINANT WAS CROSS-EXAMINED BYTHE COUNSEL FOR THE PETITIONER AS TO THE TRUENATURE OF THE AGREEMENT BETWEEN THE PARTIESWHEREIN IT WAS DISCLOSED THAT THE TRUEAGREEMENT OF THE PARTIES WAS A SALE OF JEWELRIES AND NOT WHAT WAS EMBODIED IN THERECEIPT MARKED AS EXHIBIT "A" WHICH WAS RELIEDUPON BY THE RESPONDENT COURT IN AFFIRMING THE JUDGMENT OF CONVICTION AGAINST HEREINPETITIONER; and

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III

THE RESPONDENT COURT FAILED TO APPLY IN THISCASE THE PRINCIPLE ENUNCIATED BY THISHONORABLE COURT TO THE EFFECT THAT"ACCUSATION" IS NOT, ACCORDING TO THEFUNDAMENTAL LAW, SYNONYMOUS WITH GUILT: THEPROSECUTION MUST OVERTHROW THE PRESUMPTION

OF INNOCENCE WITH PROOF OF GUILT BEYONDREASONABLE DOUBT. TO MEET THIS STANDARD,THERE IS NEED FOR THE MOST CAREFUL SCRUTINY OF THE TESTIMONY OF THE STATE, BOTH ORAL ANDDOCUMENTARY, INDEPENDENTLY OF WHATEVERDEFENSE IS OFFERED BY THE ACCUSED. ONLY IF THEJUDGE BELOW AND THE APPELLATE TRIBUNAL COULDARRIVE AT A CONCLUSION THAT THE CRIME HAD BEENCOMMITTED PRECISELY BY THE PERSON ON TRIALUNDER SUCH AN EXACTING TEST SHOULD SENTENCE THUS REQUIRED THAT EVERY INNOCENCE BE DULY

TAKEN INTO ACCOUNT. THE PROOF AGAINST HIMMUST SURVIVE THE TEST OF REASON; THESTRONGEST SUSPICION MUST NOT BE PERMITTED TOSWAY JUDGMENT. (People v. Austria, 195 SCRA 700)5

Herein the pertinent facts as alleged by theprosecution.

On or about October 8, 1987, petitioner Rosa Lim whohad come from Cebu received from private respondentVictoria Suarez the following two pieces of jewelry; one(1) 3.35 carat diamond ring worth P169,000.00 andone (1) bracelet worth P170,000.00, to be sold oncommission basis. The agreement was reflected in areceipt marked as Exhibit "A"6 for the prosecution. Thetransaction took place at the Sir Williams Apartelle in Timog Avenue, Quezon City, where Rosa Lim wastemporarily billeted.

On December 15, 1987, petitioner returned thebracelet to Vicky Suarez, but failed to return the

diamond ring or to turn over the proceeds thereof if

sold. As a result, private complainant, aside frommaking verbal demands, wrote a demand letter7 topetitioner asking for the return of said ring or theproceeds of the sale thereof. In response, petitioner,thru counsel, wrote a letter8 to private respondent'scounsel alleging that Rosa Lim had returned both ringand bracelet to Vicky Suarez sometime in September,1987, for which reason, petitioner had no longer any

liability to Mrs. Suarez insofar as the pieces of jewelrywere concerned. Irked, Vicky Suarez filed a complaintfor estafa under Article 315, par l(b) of the RevisedPenal Code for which the petitioner herein standsconvicted.

Petitioner has a different version.

Rosa Lim admitted in court that she arrived in Manilafrom Cebu sometime in October 1987, together withone Aurelia Nadera, who introduced petitioner to

private respondent, and that they were lodged at theWilliams Apartelle in Timog, Quezon City. Petitionerdenied that the transaction was for her to sell the twopieces of jewelry on commission basis. She told Mrs.Suarez that she would consider buying the pieces ofjewelry far her own use and that she would inform theprivate complainant of such decision before she goesback to Cebu. Thereafter, the petitioner took thepieces of jewelry and told Mrs. Suarez to prepare the"necessary paper for me to sign because I was not yetprepare (d) to buy it."9 After the document was

prepared, petitioner signed it. To prove that she didnot agree to the terms of the receipt regarding thesale on commission basis, petitioner insists that shesigned the aforesaid document on the upper portionthereof and not at the bottom where a space isprovided for the signature of the person(s) receivingthe jewelry. 10

On October 12, 1987 before departing for Cebu,petitioner called

up Mrs. Suarez by telephone in order

to inform her that she was no longer interested in the

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ring and bracelet. Mrs. Suarez replied that she wasbusy at the time and so, she instructed the petitionerto give the pieces of jewelry to Aurelia Nadera whowould in turn give them back to the privatecomplainant. The petitioner did as she was told andgave the two pieces of jewelry to Nadera as evidencedby a handwritten receipt, dated October 12, 1987. 11

Two issues need to be resolved: First, what was thereal transaction between Rosa Lim and Vicky Suarez acontract of agency to sell on commission basis as setout in the receipt or a sale on credit; and, second, wasthe subject diamond ring returned to Mrs. Suarezthrough Aurelia Nadera?

Petitioner maintains that she cannot be liable forestafa since she never received the jewelries in trustor on commission basis from Vicky Suarez. The realagreement between her and the private respondent

was a sale on credit with Mrs. Suarez as the owner-seller and petitioner as the buyer, as indicated by thebet that petitioner did not sign on the blank spaceprovided for the signature of the person receiving the jewelry but at the upper portion thereof immediatelybelow the description of the items taken. 12

The contention is far from meritorious.

The receipt marked as Exhibit "A" which establishes acontract of agency to sell on commission basisbetween Vicky Suarez and Rosa Lim is hereinreproduced in order to come to a proper perspective:

THIS IS TO CERTIFY, that I received from Vicky SuarezPINATUTUNAYAN KO na aking tinanggap kay___________ the following jewelries:

ang mga alahas na sumusunod:

DescriptionMga Uri PriceHalaga

l ring 3.35 dolo P 169,000.00

1 bracelet 9;170,000.00

totalKabuuan P 339,000.00

in good condition, to be sold in CASH ONLY within . . .days from date of signing this receipt na nasamabuting kalagayan upang ipagbili ng KALIWAAN(ALCONTADO) lamang sa loob ng . . . araw mula ngating pagkalagdaan:

if I could not sell, I shall return all the jewelry withinthe period mentioned above; if I would be able to sell, Ishall immediately deliver and account the wholeproceeds of sale thereof to the owner of the jewelriesat his/her residence; my compensation or commissionshall be the over-price on the value of each jewelryquoted above. I am prohibited to sell any jewelry oncredit or by installment; deposit, give for safekeeping:lend, pledge or give as security or guaranty under anycircumstance or manner, any jewelry to other personor persons.

kung hindi ko maipagbili ay isasauli ko ang lahat ngalahas sa loob ng taning na panahong nakatala saitaas; kung maipagbili ko naman ay dagli kong isusulitat ibibigay ang buong pinagbilhan sa may-ari ng mgaalahas sa kanyang bahay tahanan; ang akinggantimpala ay ang mapapahigit na halaga sanakatakdang halaga sa itaas ng bawat alahas HINDI koipinahihintulutang ipa-u-u-tang o ibibigay na huluganang alin mang alahas, ilalagak, ipagkakatiwala;ipahihiram; isasangla o ipananagot kahit sa anong

paraan ang alin mang alahas sa ibang mga tao o tao.

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I sign my name this . . . day of . . . 19 . . . at Manila,NILALAGDAAN ko ang kasunduang ito ngayong ika_____ ng dito sa Maynila.

___________________Signature of Persons whoreceived jewelries(Lagdang Tumanggap ng mgaAlahas)

Address: . . . . . . . . . . . .

Rosa Lim's signature indeed appears on the upperportion of the receipt immediately below thedescription of the items taken: We find that this factdoes not have the effect of altering the terms of thetransaction from a contract of agency to sell oncommission basis to a contract of sale. Neither does itindicate absence or vitiation of consent thereto on thepart of Rosa Lim which would make the contract voidor voidable. The moment she affixed her signaturethereon, petitioner became bound by all the termsstipulated in the receipt. She, thus, opened herself toall the legal obligations that may arise from theirbreach. This is clear from Article 1356 of the New CivilCode which provides:

Contracts shall be obligatory in whatever form theymay have been entered into, provided all the essential

requisites for their validity are present. . . .

However, there are some provisions of the law whichrequire certain formalities for particular contracts. Thefirst is when the form is required for the validity of thecontract; the second is when it is required to make thecontract effective as against third parties such asthose mentioned in Articles 1357 and 1358; and thethird is when the form is required for the purpose ofproving the existence of the contract, such as thoseprovided in the Statute of Frauds in article 1403. 13 A

contract of agency to sell on commission basis does

not belong to any of these three categories, hence it isvalid and enforceable in whatever form it may beentered into.

Furthermore, there is only one type of legal instrumentwhere the law strictly prescribes the location of thesignature of the parties thereto. This is in the case ofnotarial wills found in Article 805 of the Civil Code, to

wit:

Every will, other than a holographic will, must besubscribed at the end thereof by the testatorhimself . . . .

The testator or the person requested by him to writehis name and the instrumental witnesses of the will,shall also sign, as aforesaid, each and every pagethereof, except the last, on the left margin. . . .

In the case before us, the parties did not execute anotarial will but a simple contract of agency to sell oncommission basis, thus making the position ofpetitioner's signature thereto immaterial.

Petitioner insists, however, that the diamond ring hadbeen returned to Vicky Suarez through Aurelia Nadera,thus relieving her of any liability. Rosa Lim testified tothis effect on direct examination by her counsel:

Q: And when she left the jewelries with you, whatdid you do thereafter?

A: On October 12, I was bound for Cebu. So I calledup Vicky through telephone and informed her that I amno longer interested in the bracelet and ring and that Iwill just return it.

Q: And what was the reply of Vicky Suarez?

A: She told me that she could not come to the

apartelle since she was very busy. So, she asked me if

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Aurelia was there and when I informed her that Aureliawas there, she instructed me to give the pieces ofjewelry to Aurelia who in turn will give it back to Vicky.

Q: And you gave the two (2) pieces of jewelry toAurelia Nadera?

A: Yes, Your Honor. 14

This was supported by Aurelia Nadera in her directexamination by petitioner's counsel:

Q: Do you know if Rosa Lim in fact returned thejewelries?

A: She gave the jewelries to me.

Q: Why did Rosa Lim give the jewelries to you?

A: Rosa Lim called up Vicky Suarez the followingmorning and told Vicky Suarez that she was goinghome to Cebu and asked if she could give the jewelriesto me.

Q: And when did Rosa Lim give to you thejewelries?

A: Before she left for Cebu. 15

On rebuttal, these testimonies were belied by VickySuarez herself:

Q: It has been testified to here also by both AureliaNadera and Rosa Lim that you gave authorization toRosa Lim to turn over the two (2) pieces of jewelriesmentioned in Exhibit "A" to Aurelia Nadera, what canyou say about that?

A: That is not true sir, because at that time AureliaNadera is highly indebted to me in the amount ofP140,000.00, so if I gave it to Nadera, I will be

exposing myself to a high risk. 16