SECOND DIVISION [G.R. No. 117187. July 20, 2001] UNION MOTOR CORPORATION, petitioner-appellant, vs.

THE COURT OF APPEALS, JAR INE!MANILA FINANCE, INC., SPOUSES AL"IATO "ERNAL #$% MILAGROS "ERNAL, respondents!appelles. ECISION E LEON, JR., J.& Before us on appeal, by way of a petition for review on certiorari, is the Decision[1 !ate! "arch #$, 1%%& an! 'esolution[( !ate! Septe)ber 1&, 1%%& of the Court of *ppeals [# which affir)e! the Decision !ate! "arch +, 1%,% of the 'e-ional .rial Court of "a/ati, "etro "anila, Branch 10$, in Civil Case No1 %($ as well as its 'esolution !ate! Septe)ber 1&, 1%%& which !enie! the "otion for 'econsi!eration of the petitioner1 .he facts are as follows2 On Septe)ber 1&, 1%3%, the respon!ent Bernal spouses purchase! fro) petitioner 4nion "otor Corporation one Ci)arron 5eepney for .hirty Seven .housan! Seven 6un!re! 7ifty Ei-ht 8esos an! Si9ty Centavos :8#3,30,1+$; to be pai! in install)ents1 7or this purpose, the respon!ent spouses e9ecute! a pro)issory note an! a !ee! of chattel )ort-a-e in favor of the petitioner1 "eanwhile, the petitioner entere! into a contract of assi-n)ent of the pro)issory note an! chattel )ort-a-e with 5ar!ine<"anila 7inance, Inc1 .hrou-h "anuel Sos)e=a, an a-ent of the petitioner, the parties a-ree! that the respon!ent spouses woul! pay the a)ount of the pro)issory note to 5ar!ine<"anila 7inance, Inc1, the latter bein- the assi-nee of the petitioner1 .o effectuate the sale as well as the assi-n)ent of the pro)issory note an! chattel )ort-a-e, the respon!ent spouses were re>uire! to si-n a notice of assi-n)ent, a !ee! of assi-n)ent, a sales invoice, a re-istration certificate, an affi!avit, an! a !isclosure state)ent1 .he respon!ent spouses were obli-e! to si-n all these !ocu)ents for the reason that, accor!in- to Sos)e=a, it was a re>uire)ent of petitioner 4nion "otor Corporation an! 5ar!ine<"anila 7inance, Inc1 for the respon!ent spouses to acco)plish all the sai! !ocu)ents in or!er to have their application approve!1 4pon the respon!ent spouses? ten!er of the !ownpay)ent worth .en .housan! .hirty<Seven 8esos :81$,$#31$$;, an! the petitioner?s acceptance of the sa)e, the latter approve! the sale1 *lthou-h the respon!ent spouses have not yet physically possesse! the vehicle, Sos)e=a re>uire! the) to si-n the receipt as a con!ition for the !elivery of the vehicle1 .he respon!ent spouses continue! payin- the a-ree! install)ents even if the sub@ect )otor vehicle re)aine! un!elivere! inas)uch as 5ar!ine<"anila 7inance, Inc1 pro)ise! to !eliver the sub@ect @eepney1 .he respon!ent spouses have pai! a total of Seven .housan! 7ive 6un!re! Seven 8esos :83,0$31$$; worth of install)ents before they !iscontinue! payin- on account of non< !elivery of the sub@ect )otor vehicle1 *ccor!in- to the respon!ent spouses, the reason why the vehicle was not !elivere! was !ue to the fact that Sos)e=a alle-e!ly too/ the sub@ect )otor vehicle in his personal capacity1 On Septe)ber 11, 1%,1, 5ar!ine<"anila 7inance, Inc1, file! a co)plaint for a su) of )oney, !oc/ete! as Civil Case No1 &(,&%, a-ainst the respon!ent Bernal spouses before the then Court of 7irst Instance of "anila1 .his case was later on transferre! to the 'e-ional .rial Court of "a/ati, Branch 10$1 On Nove)ber 1$, 1%,1, the co)plaint was a)en!e! to inclu!e petitioner 4nion "otor Corporation as alternative !efen!ant, the reason bein- that if the respon!ent spouses? refusal to pay 5ar!ine<"anila 7inance, Inc1 was !ue to petitioner?s non<!elivery of the unit, the latter shoul! pay 5ar!ine<"anila 7inance, Inc1 what has been a!vance! to the petitioner1 *fter the petitioner file! its answer, the respon!ent spouses file! their a)en!e! answer with cross<clai) a-ainst the for)er an! counterclai) a-ainst 5ar!ine<"anila 7inance, Inc1 7ollowin- the presentation of evi!ence of 5ar!ine<"anila 7inance, Inc1, the respon!ent spouses presente! as witnesses *lbiato Bernal an!

8acifico .acub in support of their !efense an! counterclai) a-ainst the plaintiff an! cross<clai) a-ainst the petitioner1 .he petitioner !i! not present any evi!ence inas)uch as the testi)ony of the witness it presente! was or!ere! stric/en off the recor! for his repeate! failure to appear for cross< e9a)ination on the sche!ule! hearin-s1 .he trial court !ee)e! the presentation of the sai! witness as havin- been waive! by the petitioner1 On "arch +, 1%,%, the trial court ren!ere! a !ecision, the !ispositive portion of which rea!s2 A6E'E7O'E, @u!-)ent is hereby ren!ere! or!erin-2 11 8laintiff to pay spouses Bernals the su) of 83,0$3110 plus le-al interest until fully pai!B (1 4nion "otor Corporation to pay !efen!ants spouses Bernals the !ownpay)ent in the a)ount of 81$,$#31$$, plus le-al interest until fully pai!B #1 4nion "otor Corporation to pay plaintiff 8(#,(+,1(%, plus le-al interest until fully pai!, an! attorney?s fees e>uivalent to ($C of the a)ount !ue to plaintiff1 4nion "otor Corporation shall further pay !efen!ants spouses Bernals the su) of 8($,$$$1$$ as )oral !a)a-es, 81$,$$$1$$ as attorney?s fees an! costs of suit1[& .he petitioner interpose! an appeal before the Court of *ppeals while the respon!ent spouses appeale! to hol! the petitioner soli!arily liable with 5ar!ine<"anila 7inance, Inc1 .he appellate court !enie! both appeals an! affir)e! the trial court?s !ecision by hol!in- that2 Now, as to the appeal of !efen!ant 4nion "otors, it )ust be note! that sai! !efen!ant ha! faile! to a!!uce evi!ence in court to support its clai) of non<liability1 Ae cannot see how the absence of any evi!ence in favor of sai! !efen!ant can result in favorable reliefs to its si!e on appeal1 .here is si)ply no evi!ence to spea/ of in appellant 4nion "otor?s favor to cause a reversal of the lower court?s !ecision1 In the case of .on-son v1 C1*1 D1'1 No1 331$&, Nov1 +, 1%%(, the Supre)e Court reiterate! that2 E*s )an!ate! by the 'ules of Court, each party )ust prove his own affir)ative alle-ation, i1e1, one who asserts the affir)ative of the issue has the bur!en of presentin- at the trial such a)ount of evi!ence re>uire! by law to obtain a favorable @u!-)ent2 by prepon!erance of evi!ence in civil cases, an! by proof beyon! reasonable !oubt in cri)inal cases1 9 9 9F1 6ence, the instant petition anchore! on the followin- assi-ne! errors2 I .6E 6ONO'*BGE CO4'. O7 *88E*GS :SECOND DIVISION; D'*VEGH E''ED *ND *B4SED I.S DISC'E.ION IN NO. 7INDIND .6*. .6E GOAE' CO4'. * I4O?S DECISION O7 "*'C6 +, 1%,% IS CON.'*'H .O G*A *ND .6E EVIDENCE ON 'ECO'DB II .6E 6ONO'*GBGE CO4'. O7 *88E*GS :SECOND DIVISION; D'*VEGH E''ED *ND *B4SED I.S DISC'E.ION IN NO. 7INDIND .6*. .6E *88E*GED DECISION A*S 'ENDE'ED IN DE8'IV*.ION *ND IN DENI*G O7 6E'EIN 8E.I.IOEN'<*88EGG*N.?S 'ID6. .O D4E 8'OCESS1

.he first issue to be resolve! in the instant case is whether there has been a !elivery, physical or constructive, of the sub@ect )otor vehicle1 On this score, petitioner 4nion "otor Corporation )aintains that the respon!ent spouses are not entitle! to a return of the !ownpay)ent for the reason that there was a !elivery of the sub@ect )otor vehicle1 *ccor!in- to the petitioner, the appellate court erre! in hol!in- that no !elivery was )a!e by relyin- e9clusively on the testi)onial evi!ence of respon!ent *lbiato Bernal without consi!erin- the other evi!ence on recor!, li/e the sales invoice an! !elivery receipt which constitute an a!)ission that there was in!ee! !elivery of the sub@ect )otor vehicle1 *lso, there was a constructive !elivery of the vehicle when respon!ent *lbiato Bernal si-ne! the re-istration certificate of the sub@ect vehicle1 Inas)uch as there was alrea!y !elivery of the sub@ect )otor vehicle, ownership has been transferre! to the respon!ent spouses1 .he Chattel "ort-a-e Contract si-ne! by the respon!ent Bernal spouses in favor of the petitioner li/ewise proves that ownership has alrea!y been transferre! to the) for the reason that, un!er *rticle ($,0 of the New Civil Co!e, the )ort-a-or )ust be the owner of the property1 [0 *s owners of the @eepney, the respon!ent Bernal spouses shoul! bear the loss thereof in accor!ance with *rticle 10$& of the New Civil Co!e which provi!es that when the ownership of -oo!s is transferre! to the buyer, the -oo!s are at the buyer?s ris/ whether actual !elivery has been )a!e or not1 .hese, then, are the contentions of the petitioner1 .he )ain alle-ation of the respon!ent Bernal spouses, on the other han!, is that they never ca)e into possession of the sub@ect )otor vehicle1 .hus, it is but appropriate that they be rei)burse! by the petitioner of the initial pay)ent which they )a!e1 .hey also clai) that 5ar!ine< "anila 7inance, Inc1, an! the petitioner conspire! to !efrau! an! !eprive the) of the sub@ect )otor vehicle for which they suffere! !a)a-es1 Ae rule in favor of the respon!ent Bernal spouses1 4n!ispute! is the fact that the respon!ent Bernal spouses !i! not co)e into possession of the sub@ect Ci)arron @eepney that was suppose! to be !elivere! to the) by the petitioner1 .he re-istration certificate, receipt an! sales invoice that the respon!ent Bernal spouses si-ne! were e9plaine! !urin- the hearin- without any opposition by the petitioner1 *ccor!in- to testi)onial evi!ence a!!uce! by the respon!ent spouses !urin- the trial of the case, the sai! !ocu)ents were si-ne! as a part of the processin- an! for the approval of their application to buy the sub@ect )otor vehicle1 Aithout such si-ne! !ocu)ents, no sale, )uch less !elivery, of the sub@ect @eepney coul! be )a!e1 .he !ocu)ents were not therefore an ac/nowle!-)ent by respon!ent spouses of the physical ac>uisition of the sub@ect )otor vehicle but )erely a re>uire)ent of petitioner so that the sai! sub@ect )otor vehicle woul! be !elivere! to the)1 Ae have rule! that the issuance of a sales invoice !oes not prove transfer of ownership of the thin- sol! to the buyerB an invoice is nothin- )ore than a !etaile! state)ent of the nature, >uantity an! cost of the thin- sol! an! has been consi!ere! not a bill of sale1 [+ .he re-istration certificate si-ne! by the respon!ent spouses !oes not conclusively prove that constructive !elivery was )a!e nor that ownership has been transferre! to the respon!ent spouses1 Gi/e the receipt an! the invoice, the si-nin- of the sai! !ocu)ents was >ualifie! by the fact that it was a re>uire)ent of petitioner for the sale an! financin- contract to be approve!1 In all for)s of !elivery, it is necessary that the act of !elivery, whether constructive or actual, shoul! be couple! with the intention of !eliverin- the thin-1 .he act, without the intention, is insufficient1 [3 .he critical factor in the !ifferent )o!es of effectin- !elivery which -ives le-al effect to the act, is the actual intention of the ven!or to !eliver, an! its acceptance by the ven!ee1 Aithout that intention, there is no tra!ition1[, Enli-htenin- is Addison v. Felix and Tioco[% wherein we rule! that2 .he Co!e i)poses upon the ven!or the obli-ation to !eliver the thin- sol!1 .he thin- is consi!ere! to be !elivere! when it is place! Ein the han!s an! possession of the ven!ee1F :Civil Co!e, *rt1

1&+(;1 It is true that the sa)e article !eclares that the e9ecution of a public instru)ent is e>uivalent to the !elivery of the thin- which is the ob@ect of the contract, but, in order that this symbolic delivery may produce the effect of tradition, it is necessary that the vendor shall have had control over the thing sold that, at the moment of the sale, its material delivery could have been made. It is not enough to confer upon the purchaser the ownership and the right of possession. The thing sold must be placed in his control. When there is no impediment whatever to prevent the thing sold passing into the tenancy of the purchaser by the sole will of the vendor, symbolic delivery through the execution of a public instrument is sufficient. But if, notwithstanding the execution of the instrument, the purchaser cannot have the en oyment and material tenancy of the thing and ma!e use of it himself or through another in his name, because such tenancy and en oyment are opposed by the interposition of another will, then fiction yields to reality"the delivery has not been effected 1 :Italics supplie!; .he act of si-nin- the re-istration certificate was not inten!e! to transfer the ownership of the sub@ect )otor vehicle to respon!ent Bernal spouses inas)uch as the petitioner still nee!e! the sa)e for the approval of the financin- contract with 5ar!ine<"anila 7inance, Inc1 .he recor! shows that the re-istration certificate was sub)itte! to 5ar!ine<"anila 7inance, Inc1, which too/ possession thereof until Sos)e=a re>ueste! the latter to han! over the sai! !ocu)ent to hi)1 .he fact that the re-istration certificate was still /ept by 5ar!ine<"anila 7inance, Inc1 an! its unhesitatin- )ove to -ive the sa)e to Sos)e=a @ust -oes to show that the respon!ent spouses still ha! no co)plete control over the sub@ect )otor vehicle as they !i! not even possess the sai! certificate of re-istration nor was their consent sou-ht when 5ar!ine<"anila 7inance, Inc1 han!e! over the sai! !ocu)ent to Sos)e=a1 Inas)uch as there was neither physical nor constructive !elivery of a !eter)inate thin-, :in this case, the sub@ect )otor vehicle; the thin- sol! re)aine! at the seller?s ris/1 [1$ .he petitioner shoul! therefore bear the loss of the sub@ect )otor vehicle after Sos)e=a alle-e!ly stole the sa)e1 8etitioner?s reliance on the Chattel "ort-a-e Contract e9ecute! by the respon!ent spouses !oes not help its assertion that ownership has been transferre! to the latter since there was neither !elivery nor transfer of possession of the sub@ect )otor vehicle to respon!ent spouses1 Conse>uently, the sai! accessory contract of chattel )ort-a-e has no le-al effect whatsoever inas)uch as the respon!ent spouses are not the absolute owners thereof, ownership of the )ort-a-or bein- an essential re>uire)ent of a vali! )ort-a-e contract1 .he #arlos case[11 cite! by the petitioner is not applicable to the case at bar for the reason that in the sai! case, apart fro) the fact that it has a !ifferent issue, the buyer too/ possession of the personal property an! was able to sell the sa)e to a thir! party1 In the instant case, however, the respon!ent spouses never ac>uire! possession of the sub@ect )otor vehicle1 .he )anifestations of ownership are control an! en@oy)ent over the thin- owne!1 .he respon!ent spouses never beca)e the actual owners of the sub@ect )otor vehicle inas)uch as they never ha! !o)inion over the sa)e1 .he petitioner also !isputes the fin!in- of the appellate court that there was no !elivery1 It !i! not consi!er, accor!in- to the petitioner, the fact that the circu)stance of non<!elivery was not shown an! that the respon!ent spouses never )a!e any !e)an! for the possession of the vehicle1 Contrary to the petitioner?s alle-ation, the respon!ent spouses presente! sufficient evi!ence to prove that Sos)e=a too/ !elivery an! possession of that sub@ect )otor vehicle in his personal capacity as shown by a !ocu)ent [1( on which he :Sos)e=a; personally ac/nowle!-e! receipt of the re-istration certificate fro) 5ar!ine<"anila 7inance, Inc1 *lso, respon!ent *lbiato Bernal testifie! to the effect that they went several ti)es to the office of the petitioner to !e)an! the !elivery of the sub@ect )otor vehicle1 .he petitioner faile! to refute that testi)onial evi!ence consi!erin- that it waive! its ri-ht to present evi!ence1 *nent the secon! issue, the petitioner clai)s that the trial court co))itte! a violation of !ue process when it or!ere! the stri/in- off of the testi)ony of the petitioner?s witness as well as the !eclaration that petitioner has aban!one! its ri-ht to present evi!ence1 *ccor!in- to the petitioner,

the !elays in the hearin- of the case were neither un@ust nor !eliberate1 It @ust so happene! that fro) *u-ust 0, 1%,+ up to 5une 1%,3, the !esi-nate! counsel for the petitioner was either appointe! to the -overn)ent or was short of ti)e to -o over the recor!s of the case inas)uch as he was a new substitute counsel1 Durin- the last ti)e the petitioner?s counsel )ove! for the postpone)ent of the case, witness *)brosio Balones was not available !ue to -astro<enteritis as shown by a )e!ical certificate1 Aell<settle! is the rule that Efactual fin!in-s of the Court of *ppeals are conclusive on the parties an! not reviewable by the Supre)e Court J an! they carry even )ore wei-ht when the Court of *ppeals affir)s the factual fin!in-s of the trial court1F [1# In the present case, the trial court foun! that after the !irect testi)ony of petitioner?s witness, *)brosio Balones, the continuation of the cross<e9a)ination was postpone! an! re<sche!ule! for four :&; ti)es fro) Nove)ber (1, 1%,+ up to 5une 1%, 1%,3, all at the instance of petitioner 4nion "otor Corporation1 7or three :#; ti)es, the witness !i! not appear whenever the case was calle! for hearin-1 On 5une 1%, 1%,3, when as/e! by the trial court why the witness was not present, the petitioner?s counsel coul! not -ive any -oo! reason for his absence1 Neither !i! the petitioner offer to present any other witness to testify on that !ay1 .he appellate court assente! to these fin!in-s by >uotin- the !ecision of the trial court, to wit2 Defen!ant 4nion "otors Corporation has no evi!ence as the testi)ony of its only witness, *)brosio Balones, was or!er! stric/en off the recor! in the hearin- of 5une 1%, 1%,3, for his continuous failure to appear on sche!ule! hearin-s1 .he Court further consi!ere! sai! !efen!ant to have waive! further presentation of evi!ence1 [1& .he petitioner atte)pts to shift the bla)e on the respon!ents for the failure of its witness, Balones, to finish his testi)ony1 It was at the instance of *tty1 .acub, counsel for the respon!ents, that the testi)ony of petitioner?s witness, Balones, was !iscontinue! after *tty1 .acub as/e! for a recess an! later on for the postpone)ent of the cross<e9a)ination of the sai! witness1 .he petitioner ha! the !uty to pro!uce its witness when he was calle! to finish his testi)ony1 .o place the bla)e on the respon!ent spouses is to put a pre)iu) on the ne-li-ence of the petitioner to re>uire its own witness to testify on cross<e9a)ination1 By presentin- witness Balones on !irect< e9a)ination, the petitioner ha! the correspon!in- !uty to )a/e hi) available for cross<e9a)ination in accor!ance with fair play an! !ue process1 .he respon!ents shoul! not be pre@u!ice! by the repeate! failure of the petitioner to present its sai! witness for cross<e9a)ination1 6ence, the trial court or!ere! that the unfinishe! testi)ony of sai! witness be stric/en off the recor!1 6owever, we cannot affir) that part of the rulin- of the courts a $uo awar!in- )oral !a)a-es to the respon!ents1 7or )oral !a)a-es to be awar!e! in cases of breach of contract, the plaintiff )ust prove ba! faith or frau!ulent act on the part of the !efen!ant1 [10 In the instant case, the alle-ations about connivance an! frau!ulent sche)es by the petitioner an! "anuel Sos)e=a were )erely -eneral alle-ations an! without any specific evi!ence to sustain the sai! clai)s1 In fact, E9hibit E1F which bears the na)e an! si-nature of Sos)e=a as the person who receive! the re-istration certificate )ilitates a-ainst the respon!ent spouses? clai) that the petitioner connive! with its a-ent to !eprive the) of the possession of the sub@ect )otor vehicle1 .he sai! !ocu)ent shows that Sos)e=a acte! only in his personal an! private capacity, thereby effectively e9clu!in- any alle-e! participation of the petitioner in !eprivin- the) of the possession of the sub@ect )otor vehicle1 .he petitioner shoul! not be hel! liable for the acts of its a-ent which were !one by the latter in his personal capacity1 6owever, we affir) the awar! of attorney?s fees1 Ahen a party is co)pelle! to liti-ate with thir! persons or to incur e9penses to protect his interest, attorney?s fees shoul! be awar!e!1 [1+ In the present case, the respon!ent spouses were force! to i)plea! the petitioner 4nion "otor Corporation on account of the collection suit file! a-ainst the) by 5ar!ine<"anila 7inance, Inc1, a case which was eventually won by the respon!ent spouses1

'HEREFORE, the appeale! Decision !ate! "arch #$, 1%%& of the Court of *ppeals is hereby *77I'"ED with the "ODI7IC*.ION that the awar! of )oral !a)a-es is !elete!1 Aith costs a-ainst the petitioner1 SO OR ERE . Bellosillo, %#hairman&, 'endo(a, an! Buena, ))., concur. *uisumbing, )., on official leave1