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G.R. No. L-17474

October 25, 1962

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE V. BAGTAS, defendant,
FELICIDAD M. BAGTAS, Administratrix of the Intestate
Estate left by the late Jose V. Bagtas, petitionerappellant.
D. T. Reyes, Liaison and Associates for petitionerappellant.

the bad peace and order situation in Cagayan Valley,

particularly in the barrio of Baggao, and of the pending
appeal he had taken to the Secretary of Agriculture and
Natural Resources and the President of the Philippines
from the refusal by the Director of Animal Industry to
deduct from the book value of the bulls corresponding
yearly depreciation of 8% from the date of acquisition,
to which depreciation the Auditor General did not
object, he could not return the animals nor pay their
value and prayed for the dismissal of the complaint.

After hearing, on 30 July 1956 the trial court render

judgment

Office of the Solicitor General for plaintiff-appellee.

PADILLA, J.:
The Court of Appeals certified this case to this Court
because only questions of law are raised.
On 8 May 1948 Jose V. Bagtas borrowed from the
Republic of the Philippines through the Bureau of
Animal Industry three bulls: a Red Sindhi with a book
value of P1,176.46, a Bhagnari, of P1,320.56 and a
Sahiniwal, of P744.46, for a period of one year from 8
May 1948 to 7 May 1949 for breeding purposes subject
to a government charge of breeding fee of 10% of the
book value of the bulls. Upon the expiration on 7 May
1949 of the contract, the borrower asked for a renewal
for another period of one year. However, the Secretary
of Agriculture and Natural Resources approved a
renewal thereof of only one bull for another year from 8
May 1949 to 7 May 1950 and requested the return of
the other two. On 25 March 1950 Jose V. Bagtas wrote
to the Director of Animal Industry that he would pay
the value of the three bulls. On 17 October 1950 he
reiterated his desire to buy them at a value with a
deduction of yearly depreciation to be approved by the
Auditor General. On 19 October 1950 the Director of
Animal Industry advised him that the book value of the
three bulls could not be reduced and that they either
be returned or their book value paid not later than 31
October 1950. Jose V. Bagtas failed to pay the book
value of the three bulls or to return them. So, on 20
December 1950 in the Court of First Instance of Manila
the Republic of the Philippines commenced an action
against him praying that he be ordered to return the
three bulls loaned to him or to pay their book value in
the total sum of P3,241.45 and the unpaid breeding fee
in the sum of P199.62, both with interests, and costs;
and that other just and equitable relief be granted in
(civil No. 12818).

On 5 July 1951 Jose V. Bagtas, through counsel

Navarro, Rosete and Manalo, answered that because of

. . . sentencing the latter (defendant) to pay the sum of

P3,625.09 the total value of the three bulls plus the
breeding fees in the amount of P626.17 with interest
on both sums of (at) the legal rate from the filing of
this complaint and costs.

On 9 October 1958 the plaintiff moved ex parte for a

writ of execution which the court granted on 18
October and issued on 11 November 1958. On 2
December 1958 granted an ex-parte motion filed by
the plaintiff on November 1958 for the appointment of
a special sheriff to serve the writ outside Manila. Of this
order appointing a special sheriff, on 6 December
1958, Felicidad M. Bagtas, the surviving spouse of the
defendant Jose Bagtas who died on 23 October 1951
and as administratrix of his estate, was notified. On 7
January 1959 she file a motion alleging that on 26 June
1952 the two bull Sindhi and Bhagnari were returned to
the Bureau Animal of Industry and that sometime in
November 1958 the third bull, the Sahiniwal, died from
gunshot wound inflicted during a Huk raid on Hacienda
Felicidad Intal, and praying that the writ of execution
be quashed and that a writ of preliminary injunction be
issued. On 31 January 1959 the plaintiff objected to her
motion. On 6 February 1959 she filed a reply thereto.
On the same day, 6 February, the Court denied her
motion. Hence, this appeal certified by the Court of
Appeals to this Court as stated at the beginning of this
opinion.
It is true that on 26 June 1952 Jose M. Bagtas, Jr., son of
the appellant by the late defendant, returned the
Sindhi and Bhagnari bulls to Roman Remorin,
Superintendent of the NVB Station, Bureau of Animal
Industry, Bayombong, Nueva Vizcaya, as evidenced by
a memorandum receipt signed by the latter (Exhibit 2).
That is why in its objection of 31 January 1959 to the
appellant's motion to quash the writ of execution the
appellee prays "that another writ of execution in the
sum of P859.53 be issued against the estate of
defendant deceased Jose V. Bagtas." She cannot be

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held liable for the two bulls which already had been
returned to and received by the appellee.
The appellant contends that the Sahiniwal bull was
accidentally killed during a raid by the Huk in
November 1953 upon the surrounding barrios of
Hacienda Felicidad Intal, Baggao, Cagayan, where the
animal was kept, and that as such death was due to
force majeure she is relieved from the duty of returning
the bull or paying its value to the appellee. The
contention is without merit. The loan by the appellee to
the late defendant Jose V. Bagtas of the three bulls for
breeding purposes for a period of one year from 8 May
1948 to 7 May 1949, later on renewed for another year
as regards one bull, was subject to the payment by the
borrower of breeding fee of 10% of the book value of
the bulls. The appellant contends that the contract was
commodatum and that, for that reason, as the appellee
retained ownership or title to the bull it should suffer its
loss due to force majeure. A contract of commodatum
is essentially gratuitous.1 If the breeding fee be
considered a compensation, then the contract would
be a lease of the bull. Under article 1671 of the Civil
Code the lessee would be subject to the responsibilities
of a possessor in bad faith, because she had continued
possession of the bull after the expiry of the contract.
And even if the contract be commodatum, still the
appellant is liable, because article 1942 of the Civil
Code provides that a bailee in a contract of
commodatum
. . . is liable for loss of the things, even if it should be
through a fortuitous event:
(2)
..

If he keeps it longer than the period stipulated .

(3)
If the thing loaned has been delivered with
appraisal of its value, unless there is a stipulation
exempting the bailee from responsibility in case of a
fortuitous event;
The original period of the loan was from 8 May 1948 to
7 May 1949. The loan of one bull was renewed for
another period of one year to end on 8 May 1950. But
the appellant kept and used the bull until November
1953 when during a Huk raid it was killed by stray
bullets. Furthermore, when lent and delivered to the
deceased husband of the appellant the bulls had each
an appraised book value, to with: the Sindhi, at
P1,176.46, the Bhagnari at P1,320.56 and the
Sahiniwal at P744.46. It was not stipulated that in case
of loss of the bull due to fortuitous event the late
husband of the appellant would be exempt from
liability.

The appellant's contention that the demand or prayer

by the appellee for the return of the bull or the
payment of its value being a money claim should be

presented or filed in the intestate proceedings of the

defendant who died on 23 October 1951, is not
altogether without merit. However, the claim that his
civil personality having ceased to exist the trial court
lost jurisdiction over the case against him, is
untenable, because section 17 of Rule 3 of the Rules of
Court provides that

After a party dies and the claim is not thereby

extinguished, the court shall order, upon proper notice,
the legal representative of the deceased to appear and
to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be
granted. . . .

and after the defendant's death on 23 October 1951

his counsel failed to comply with section 16 of Rule 3
which provides that

Whenever a party to a pending case dies . . . it shall be

the duty of his attorney to inform the court promptly of
such death . . . and to give the name and residence of
the executory administrator, guardian, or other legal
representative of the deceased . . . .

The notice by the probate court and its publication in

the Voz de Manila that Felicidad M. Bagtas had been
issue letters of administration of the estate of the late
Jose Bagtas and that "all persons having claims for
monopoly against the deceased Jose V. Bagtas, arising
from contract express or implied, whether the same be
due, not due, or contingent, for funeral expenses and
expenses of the last sickness of the said decedent, and
judgment for monopoly against him, to file said claims
with the Clerk of this Court at the City Hall Bldg.,
Highway 54, Quezon City, within six (6) months from
the date of the first publication of this order, serving a
copy thereof upon the aforementioned Felicidad M.
Bagtas, the appointed administratrix of the estate of
the said deceased," is not a notice to the court and the
appellee who were to be notified of the defendant's
death in accordance with the above-quoted rule, and
there was no reason for such failure to notify, because
the attorney who appeared for the defendant was the
same who represented the administratrix in the special
proceedings instituted for the administration and
settlement of his estate. The appellee or its attorney or
representative could not be expected to know of the
death of the defendant or of the administration
proceedings of his estate instituted in another court
that if the attorney for the deceased defendant did not
notify the plaintiff or its attorney of such death as
required by the rule.

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As the appellant already had returned the two bulls to

the appellee, the estate of the late defendant is only
liable for the sum of P859.63, the value of the bull
which has not been returned to the appellee, because
it was killed while in the custody of the administratrix
of his estate. This is the amount prayed for by the
appellee in its objection on 31 January 1959 to the
motion filed on 7 January 1959 by the appellant for the
quashing of the writ of execution.

Special proceedings for the administration and

settlement of the estate of the deceased Jose V. Bagtas
having been instituted in the Court of First Instance of
Rizal (Q-200), the money judgment rendered in favor of
the appellee cannot be enforced by means of a writ of
execution but must be presented to the probate court
for payment by the appellant, the administratrix
appointed by the court.

ACCORDINGLY, the writ of execution appealed from is

set aside, without pronouncement as to costs.

FIRST DIVISION
G.R. No. 154878

March 16, 2007

CAROLYN M. GARCIA, Petitioner,

vs.
RICA MARIE S. THIO, Respondent.
DECISION
CORONA, J.:
Assailed in this petition for review on certiorari1 are the
June 19, 2002 decision2 and August 20, 2002
resolution3 of the Court of Appeals (CA) in CA-G.R. CV
No. 56577 which set aside the February 28, 1997
decision of the Regional Trial Court (RTC) of Makati City,
Branch 58.
Sometime in February 1995, respondent Rica Marie S.
Thio received from petitioner Carolyn M. Garcia a
crossed check4 dated February 24, 1995 in the amount
of US$100,000 payable to the order of a certain
Marilou Santiago.5 Thereafter, petitioner received from
respondent every month (specifically, on March 24,
April 26, June 26 and July 26, all in 1995) the amount of
US$3,0006 and P76,5007 on July 26,8 August 26,
September 26 and October 26, 1995.

In June 1995, respondent received from petitioner

another crossed check9 dated June 29, 1995 in the
amount of P500,000, also payable to the order of
Marilou Santiago.10 Consequently, petitioner received
from respondent the amount of P20,000 every month
on August 5, September 5, October 5 and November 5,
1995.11
According to petitioner, respondent failed to pay the
principal amounts of the loans (US$100,000 and
P500,000) when they fell due. Thus, on February 22,
1996, petitioner filed a complaint for sum of money
and damages in the RTC of Makati City, Branch 58
against respondent, seeking to collect the sums of
US$100,000, with interest thereon at 3% a month from
October 26, 1995 and P500,000, with interest thereon
at 4% a month from November 5, 1995, plus attorneys
fees and actual damages.12
Petitioner alleged that on February 24, 1995,
respondent borrowed from her the amount of
US$100,000 with interest thereon at the rate of 3% per
month, which loan would mature on October 26,
1995.13 The amount of this loan was covered by the
first check. On June 29, 1995, respondent again
borrowed the amount of P500,000 at an agreed
monthly interest of 4%, the maturity date of which was
on November 5, 1995.14 The amount of this loan was
covered by the second check. For both loans, no
promissory note was executed since petitioner and
respondent were close friends at the time.15
Respondent paid the stipulated monthly interest for
both loans but on their maturity dates, she failed to
pay the principal amounts despite repeated
demands.161awphi1.nt
Respondent denied that she contracted the two loans
with petitioner and countered that it was Marilou
Santiago to whom petitioner lent the money. She
claimed she was merely asked by petitioner to give the
crossed checks to Santiago.17 She issued the checks
for P76,000 and P20,000 not as payment of interest
but to accommodate petitioners request that
respondent use her own checks instead of
Santiagos.18

In a decision dated February 28, 1997, the RTC ruled in

favor of petitioner.19 It found that respondent
borrowed from petitioner the amounts of US$100,000
with monthly interest of 3% and P500,000 at a monthly
interest of 4%:20

WHEREFORE, finding preponderance of evidence to

sustain the instant complaint, judgment is hereby
rendered in favor of [petitioner], sentencing
[respondent] to pay the former the amount of:

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1. [US$100,000.00] or its peso equivalent with interest
thereon at 3% per month from October 26, 1995 until
fully paid;
2. P500,000.00 with interest thereon at 4% per month
from November 5, 1995 until fully paid.

existed between the parties. x x x (emphasis

supplied)22
Hence this petition.23

For lack of merit, [respondents] counterclaim is

perforce dismissed.

As a rule, only questions of law may be raised in a

petition for review on certiorari under Rule 45 of the
Rules of Court. However, this case falls under one of
the exceptions, i.e., when the factual findings of the CA
(which held that there were no contracts of loan
between petitioner and respondent) and the RTC
(which held that there were contracts of loan) are
contradictory.24

With costs against [respondent].

The petition is impressed with merit.

IT IS SO ORDERED.21

A loan is a real contract, not consensual, and as such is

perfected only upon the delivery of the object of the
contract.25 This is evident in Art. 1934 of the Civil
Code which provides:

3. P100,000.00 as and for attorneys fees; and

4. P50,000.00 as and for actual damages.

On appeal, the CA reversed the decision of the RTC and

ruled that there was no contract of loan between the
parties:
A perusal of the record of the case shows that
[petitioner] failed to substantiate her claim that
[respondent] indeed borrowed money from her. There
is nothing in the record that shows that [respondent]
received money from [petitioner]. What is evident is
the fact that [respondent] received a MetroBank
[crossed] check dated February 24, 1995 in the sum of
US$100,000.00, payable to the order of Marilou
Santiago and a CityTrust [crossed] check dated June
29, 1995 in the amount of P500,000.00, again payable
to the order of Marilou Santiago, both of which were
issued by [petitioner]. The checks received by
[respondent], being crossed, may not be encashed but
only deposited in the bank by the payee thereof, that
is, by Marilou Santiago herself.
It must be noted that crossing a check has the
following effects: (a) the check may not be encashed
but only deposited in the bank; (b) the check may be
negotiated only onceto one who has an account with
the bank; (c) and the act of crossing the check serves
as warning to the holder that the check has been
issued for a definite purpose so that he must inquire if
he has received the check pursuant to that purpose,
otherwise, he is not a holder in due course.
Consequently, the receipt of the [crossed] check by
[respondent] is not the issuance and delivery to the
payee in contemplation of law since the latter is not
the person who could take the checks as a holder, i.e.,
as a payee or indorsee thereof, with intent to transfer
title thereto. Neither could she be deemed as an agent
of Marilou Santiago with respect to the checks because
she was merely facilitating the transactions between
the former and [petitioner].
With the foregoing circumstances, it may be fairly
inferred that there were really no contracts of loan that

An accepted promise to deliver something by way of

commodatum or simple loan is binding upon the
parties, but the commodatum or simple loan itself shall
not be perfected until the delivery of the object of the
contract. (Emphasis supplied)

Upon delivery of the object of the contract of loan (in

this case the money received by the debtor when the
checks were encashed) the debtor acquires ownership
of such money or loan proceeds and is bound to pay
the creditor an equal amount.26
It is undisputed that the checks were delivered to
respondent. However, these checks were crossed and
payable not to the order of respondent but to the order
of a certain Marilou Santiago. Thus the main question
to be answered is: who borrowed money from
petitioner respondent or Santiago?
Petitioner insists that it was upon respondents
instruction that both checks were made payable to
Santiago.27 She maintains that it was also upon
respondents instruction that both checks were
delivered to her (respondent) so that she could, in turn,
deliver the same to Santiago.28 Furthermore, she
argues that once respondent received the checks, the
latter had possession and control of them such that she
had the choice to either forward them to Santiago (who
was already her debtor), to retain them or to return
them to petitioner.29
We agree with petitioner. Delivery is the act by which
the res or substance thereof is placed within the actual
or constructive possession or control of another.30
Although respondent did not physically receive the
proceeds of the checks, these instruments were placed
in her control and possession under an arrangement
whereby she actually re-lent the amounts to Santiago.

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Several factors support this conclusion.
First, respondent admitted that petitioner did not
personally know Santiago.31 It was highly improbable
that petitioner would grant two loans to a complete
stranger without requiring as much as promissory
notes or any written acknowledgment of the debt
considering that the amounts involved were quite big.
Respondent, on the other hand, already had
transactions with Santiago at that time.32
Second, Leticia Ruiz, a friend of both petitioner and
respondent (and whose name appeared in both parties
list of witnesses) testified that respondents plan was
for petitioner to lend her money at a monthly interest
rate of 3%, after which respondent would lend the
same amount to Santiago at a higher rate of 5% and
realize a profit of 2%.33 This explained why respondent
instructed petitioner to make the checks payable to
Santiago. Respondent has not shown any reason why
Ruiz testimony should not be believed.
Third, for the US$100,000 loan, respondent admitted
issuing her own checks in the amount of P76,000 each
(peso equivalent of US$3,000) for eight months to
cover the monthly interest. For the P500,000 loan, she
also issued her own checks in the amount of P20,000
each for four months.34 According to respondent, she
merely accommodated petitioners request for her to
issue her own checks to cover the interest payments
since petitioner was not personally acquainted with
Santiago.35 She claimed, however, that Santiago
would replace the checks with cash.36 Her explanation
is simply incredible. It is difficult to believe that
respondent would put herself in a position where she
would be compelled to pay interest, from her own
funds, for loans she allegedly did not contract. We
declared in one case that:
In the assessment of the testimonies of witnesses, this
Court is guided by the rule that for evidence to be
believed, it must not only proceed from the mouth of a
credible witness, but must be credible in itself such as
the common experience of mankind can approve as
probable under the circumstances. We have no test of
the truth of human testimony except its conformity to
our knowledge, observation, and experience. Whatever
is repugnant to these belongs to the miraculous, and is
outside of juridical cognizance.37

Fourth, in the petition for insolvency sworn to and filed

by Santiago, it was respondent, not petitioner, who was
listed as one of her (Santiagos) creditors.38
Last, respondent inexplicably never presented Santiago
as a witness to corroborate her story.39 The
presumption is that "evidence willfully suppressed
would be adverse if produced."40 Respondent was not
able to overturn this presumption.

We hold that the CA committed reversible error when it

ruled that respondent did not borrow the amounts of
US$100,000 and P500,000 from petitioner. We instead
agree with the ruling of the RTC making respondent
liable for the principal amounts of the loans.
We do not, however, agree that respondent is liable for
the 3% and 4% monthly interest for the US$100,000
and P500,000 loans respectively. There was no written
proof of the interest payable except for the verbal
agreement that the loans would earn 3% and 4%
interest per month. Article 1956 of the Civil Code
provides that "[n]o interest shall be due unless it has
been expressly stipulated in writing."
Be that as it may, while there can be no stipulated
interest, there can be legal interest pursuant to Article
2209 of the Civil Code. It is well-settled that:
When the obligation is breached, and it consists in the
payment of a sum of money, i.e., a loan or forbearance
of money, the interest due should be that which may
have been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest from the
time it is judicially demanded. In the absence of
stipulation, the rate of interest shall be 12% per annum
to be computed from default, i.e., from judicial or
extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.41
Hence, respondent is liable for the payment of legal
interest per annum to be computed from November 21,
1995, the date when she received petitioners demand
letter.42 From the finality of the decision until it is fully
paid, the amount due shall earn interest at 12% per
annum, the interim period being deemed equivalent to
a forbearance of credit.43
The award of actual damages in the amount of P50,000
and P100,000 attorneys fees is deleted since the RTC
decision did not explain the factual bases for these
damages.
WHEREFORE, the petition is hereby GRANTED and the
June 19, 2002 decision and August 20, 2002 resolution
of the Court of Appeals in CA-G.R. CV No. 56577 are
REVERSED and SET ASIDE. The February 28, 1997
decision of the Regional Trial Court in Civil Case No. 96266 is AFFIRMED with the MODIFICATION that
respondent is directed to pay petitioner the amounts of
US$100,000 and P500,000 at 12% per annum interest
from November 21, 1995 until the finality of the
decision. The total amount due as of the date of finality
will earn interest of 12% per annum until fully paid. The
award of actual damages and attorneys fees is
deleted.
SO ORDERED.

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G.R. No. L-46240

November 3, 1939

MARGARITA QUINTOS and ANGEL A. ANSALDO,

plaintiffs-appellants,
vs.
BECK, defendant-appellee.
Mauricio Carlos for appellants.
Felipe Buencamino, Jr. for appellee.

IMPERIAL, J.:
The plaintiff brought this action to compel the
defendant to return her certain furniture which she lent
him for his use. She appealed from the judgment of the
Court of First Instance of Manila which ordered that the
defendant return to her the three has heaters and the
four electric lamps found in the possession of the
Sheriff of said city, that she call for the other furniture
from the said sheriff of Manila at her own expense, and
that the fees which the Sheriff may charge for the
deposit of the furniture be paid pro rata by both
parties, without pronouncement as to the costs.
The defendant was a tenant of the plaintiff and
as such occupied the latter's house on M. H. del Pilar
street, No. 1175. On January 14, 1936, upon the
novation of the contract of lease between the plaintiff
and the defendant, the former gratuitously granted to
the latter the use of the furniture described in the third
paragraph of the stipulation of facts, subject to the
condition that the defendant would return them to the
plaintiff upon the latter's demand. The plaintiff sold the
property to Maria Lopez and Rosario Lopez and on
September 14, 1936, these three notified the
defendant of the conveyance, giving him sixty days to
vacate the premises under one of the clauses of the
contract of lease. There after the plaintiff required the
defendant to return all the furniture transferred to him
for them in the house where they were found. On
November 5, 1936, the defendant, through another
person, wrote to the plaintiff reiterating that she may
call for the furniture in the ground floor of the house.
On the 7th of the same month, the defendant wrote
another letter to the plaintiff informing her that he
could not give up the three gas heaters and the four
electric lamps because he would use them until the
15th of the same month when the lease in due to
expire. The plaintiff refused to get the furniture in view
of the fact that the defendant had declined to make

delivery of all of them. On

November 15th,
before vacating the house, the defendant deposited
with the Sheriff all the furniture belonging to the
plaintiff and they are now on deposit in the warehouse
situated at No. 1521, Rizal Avenue, in the custody of
the said sheriff.
In their seven assigned errors the plaintiffs
contend that the trial court incorrectly applied the law:
in holding that they violated the contract by not calling
for all the furniture on November 5, 1936, when the
defendant placed them at their disposal; in not
ordering the defendant to pay them the value of the
furniture in case they are not delivered; in holding that
they should get all the furniture from the Sheriff at
their expenses; in ordering them to pay-half of the
expenses claimed by the Sheriff for the deposit of the
furniture; in ruling that both parties should pay their
respective legal expenses or the costs; and in denying
pay their respective legal expenses or the costs; and in
denying the motions for reconsideration and new trial.
To dispose of the case, it is only necessary to decide
whether the defendant complied with his obligation to
return the furniture upon the plaintiff's demand;
whether the latter is bound to bear the deposit fees
thereof, and whether she is entitled to the costs of
litigation.lawphi1.net
The contract entered into between the parties is
one of commadatum, because under it the plaintiff
gratuitously granted the use of the furniture to the
defendant, reserving for herself the ownership thereof;
by this contract the defendant bound himself to return
the furniture to the plaintiff, upon the latters demand
(clause 7 of the contract, Exhibit A; articles 1740,
paragraph 1, and 1741 of the Civil Code). The
obligation voluntarily assumed by the defendant to
return the furniture upon the plaintiff's demand, means
that he should return all of them to the plaintiff at the
latter's residence or house. The defendant did not
comply with this obligation when he merely placed
them at the disposal of the plaintiff, retaining for his
benefit the three gas heaters and the four eletric
lamps. The provisions of article 1169 of the Civil Code
cited by counsel for the parties are not squarely
applicable. The trial court, therefore, erred when it
came to the legal conclusion that the plaintiff failed to
comply with her obligation to get the furniture when
they were offered to her.

As the defendant had voluntarily undertaken to

return all the furniture to the plaintiff, upon the latter's
demand, the Court could not legally compel her to bear
the expenses occasioned by the deposit of the
furniture at the defendant's behest. The latter, as
bailee, was not entitled to place the furniture on
deposit; nor was the plaintiff under a duty to accept
the offer to return the furniture, because the defendant

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wanted to retain the three gas heaters and the four
electric lamps.
As to the value of the furniture, we do not
believe that the plaintiff is entitled to the payment
thereof by the defendant in case of his inability to
return some of the furniture because under paragraph
6 of the stipulation of facts, the defendant has neither
agreed to nor admitted the correctness of the said
value. Should the defendant fail to deliver some of the
furniture, the value thereof should be latter determined
by the trial Court through evidence which the parties
may desire to present.

The costs in both instances should be borne by

the defendant because the plaintiff is the prevailing
party (section 487 of the Code of Civil Procedure). The

defendant was the one who breached the contract of

commodatum, and without any reason he refused to
return and deliver all the furniture upon the plaintiff's
demand. In these circumstances, it is just and
equitable that he pay the legal expenses and other
judicial costs which the plaintiff would not have
otherwise defrayed.
The appealed judgment is modified and the
defendant is ordered to return and deliver to the
plaintiff, in the residence to return and deliver to the
plaintiff, in the residence or house of the latter, all the
furniture described in paragraph 3 of the stipulation of
facts Exhibit A. The expenses which may be occasioned
by the delivery to and deposit of the furniture with the
Sheriff shall be for the account of the defendant. the
defendant shall pay the costs in both instances. So
ordered.