Special Powers of Attorney with respect to Principal’s causes of action

85 - Robinson Fleming v. Cruz 40 Phil 42

G.R. No. L-24904 March 25, 1926

ROBINSON, FLEMING AND CO., Plaintiff-Appellant, vs. CRUZ &

TAN CHONG SAY, Defendant-Appellee.

J. F. Boomer and C. de G. Alvear for appellant.

J. Perez Cardenas and Jose P. Osorio for appellee.

STATEMENT  chanrobles virtual law library

Plaintiff is a partnership organized and existing under the laws of

Great Britain, with a resident attorney-in-fact in the Philippine
Islands.   chanroblesvirtualawlibrary chanrobles virtual law library

The defendant is a domestic partnership doing business in the City

of Manila, and it is alleged that it is represented in London, England,
by a duly appointed agent and attorney-in-fact.   chanroblesvirtualawlibrary chanrobles virtual law library

Plaintiff claims that under a written contract executed about April 1,

1921, known in the record as Exhibit A, it bought from the
defendant 500 bales of Manila hemp grade J at 40 pounds less 1 per
cent, equivalent, in Philippine currency, to P364.66, per ton of 20
cwt. net landed weight. That pursuant to the contract, on May 31,
1921, the defendant shipped in two parcels from Manila to London,
for delivery to plaintiff, the 500 bales of Manila hemp grade JDC/J,
freight and f. p. a. insurance for the account of the defendant,
which hemp upon being weighed in London, and deducting the tare,
as provided the contract, amounted to 1182 cwt. - 2 qtrs. - 10
pounds equivalent to 59.13 tons of 20 cwt. net weight, and after
deducting freight, commission, and insurance, as the contract
provides, it had an invoice value of 1872 pounds - 6s - 4d,
equivalent to P17,241.48, Philippine currency. That at the time of
the shipment, defendant drew upon plaintiff for P18,417.27, which
draft the plaintiff paid by means of a letter of credit, thus leaving a
balance due and owing the plaintiff of P1,175.79. That upon the
arrival of the hemp in London. it was found it was not in
merchantable condition, and was not so when it was shipped from
Manila. Therefore, arbitration was had under the provisions of
clause 9 of the contract at a cost of P218.17 for the account of the
defendant, which arbitration resulted in an allowance to plaintiff of a
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

reduction in the price of P13,150.04, which arbitration and its

findings were approved and accepted by the defendant. That after
the shipment, defendant did not, without undue delay, provided
plaintiff with Government graders' certificates for the hemp, and by
reason thereof, plaintiff was obliged to lighter and store 250 bales of
it pending the arrival of the Government graders' certificates at a
cost of P135.37. That by reason of such acts, the defendant became
indebted to the plaintiff in the sum of P14,461.20, no part of which
has been paid, except the sum of P11,687.87, which was the net
value of 450 bales of Manila hemp grade J. shipped by defendant to
plaintiff during July, 1921, leaving a balance then due and owing
from defendant to plaintiff, on its first cause of action, of P2,539.09,
for which demand has been made and payment refused.   chanroblesvirtualawlibrary chanrobles virtual law library

Like allegations are made in a second cause of section, in which

plaintiff claims P722.53, and in the third cause of action, for which it
claims P3,526.71, and in the fourth cause of action P3,673.09.   chanroblesvirtualawlibrary chanrobles virtual law library

For answer the defendant made a general and specific denial of all
of the material allegations made in the complaint.   chanroblesvirtualawlibrary chanrobles virtual law library

After the evidence was taken upon such issues, the lower court
rendered judgment for the defendant, to which the plaintiff duly
excepted and filed a motion for a new trial, which was overruled.  
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chanroblesvirtualawlibrary chanrobles

The plaintiff appeals and assigns the following errors:

I. The trial court erred in that, after finding that Messrs. H. E.

Marchant and Francis Adams, during all the times material to the
issues in this case, had been agents of the defendant in London for
the purpose of selling and disposing of its hemp, the nature,
character, and scope of such agency not appearing to have been
limited, the trial court held that plaintiff was obliged to show such
agency to have included within scope matters necessary and
incidental to the selling and disposing of defendant's hemp in
London.   chanroblesvirtualawlibrary chanrobles virtual law library

II. The trial court erred in holding that the plaintiff was bound to
show before the court what evidence was before the arbitrators
when they made up the award; that the action of the arbitrators
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

was not binding upon the court and that the court was not bound to
assume that such action was legal and just.   chanroblesvirtualawlibrary chanrobles virtual law library

III. The trial court erred in finding, in its final decision, that plaintiff
was a British Corporation.   chanroblesvirtualawlibrary chanrobles virtual law library

IV. The trial court erred in finding in its final decision that it had
sustained objections to certain portions of the deposition of the
witness William Ernest Sibley, offered by plaintiff and couched in the
following words: chanrobles virtual law library

When the said 500 bales arrived in London, the plaintiffs, found that
the hemp was not in sound, dry condition in accordance with the
clause 9 of the said contract (Exhibit W. E. S. 1). The arbitration
which was duly held, resulted in an award being made by the
arbitrators appointed by the plaintiffs and defendants, respectively
in the plaintiffs' favor, whereby an allowance was made to the
plaintiffs on the price of the said 500 bales, &c.' B. E. 49.   chanroblesvirtualawlibrary chanrobles virtual law library

V. The trial court erred in finding that there was not sufficient
evidence before the court to sustain the allegations of plaintiff.   chanroblesvirtualawlibrary chanrobles virtual law library

IV. The trial court erred in deciding the issues in the case in favor of
the defendant and against the plaintiff.

JOHNS, J.:

This action is founded upon alleged written contract which the

plaintiff claims was executed in London on April 1, 1921, by and
between it and the defendant, acting by and through its authorized
agent, and an alleged copy of which is in the record, and purports to
have been executed by H. Marchant, now deceased, who was then
in London, and who, the defendant admits in its own testimony, was
at that time the London agent of the defendant in the selling of its
hemp.   chanroblesvirtualawlibrary chanrobles virtual law library

In the very nature of things, an agent cannot sell hemp in a foreign

country without making some kind of a contract, and if he had
power to sell, it would carry with it the authority to make and enter
into the usual and customary contract for its sale.   chanroblesvirtualawlibrary chanrobles virtual law library
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

As we analyze the evidence, Marchant was the London agent of the

defendant, and in the ordinary course of business, executed the
contract known in the record as Exhibit A, and on behalf of the
defendant, as its agent, and as its act and deed, and, for such
reason, the defendants is bound by the contract. This is confirmed
by the further fact that the defendant undertook to carry out and
perform the terms and provisions of the contract, and, by and under
its terms, to ship and deliver the hemp, drew the draft, and took
and accepted the money for its payment.   chanroblesvirtualawlibrary chanrobles virtual law library

We are clearly of the opinion that the contract in question is valid

and binding upon the defendant, and that Marchant, as the agent of
the defendant, not only had the authority to make and enter into it
for and on behalf of the defendant, but as a matter of fact that
contract was legally ratified and approved by the subsequent acts
and conduct of the defendant. It is very apparent that the contract
was executed in the ordinary course of business, and that in
executing it, Marchant was acting within the scope of his authority
as the agent of the defendant. It will also be noted that under its
terms and provisions, the defendant was to deliver the hemp in
London.   chanroblesvirtualawlibrary chanrobles virtual law library

Clause 18 of the contract provides:

Arbitration. - Any dispute arising out of this Contract, or in any way

relating to it or to its construction or fulfillment, shall be referred to
Arbitration in accordance with the By-Laws of the Manila Hemp
Association endorsed hereon, which shall be deemed to form part of
this Contract.

Clause 4 of the By-Laws of the Manila Hemp Association provides:

All questions and matters referred to arbitration pursuant to the

annexed contract shall be referred to the arbitration of Two
Members or qualified Nominees or Associate Members of the Manila
Hemp Association, buyer and seller each nominating one, and in
case such arbitrators are unable to agree, then to umpire who shall
be appointed by the said arbitrators; but in the event of their not
appointing an umpire before proceeding with the reference and
within one week of the date of their own appointment, then to an
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

umpire who shall be appointed, at the request of either of the

parties to the dispute, by the Chairman, Vice-Chairman or acting
Chairman for the time being of the Manila Hemp Association.

Provisions is then made for the manner of proceeding should either

party fail to appoint an arbitrator, and for an appeal on certain
specified conditions.   chanroblesvirtualawlibrary chanrobles virtual law library

Clause 5 of the By-Laws provides:  chanrobles virtual law library

Awards by Arbitrators shall be made out on the official form issued

by the Association, and shall be valid, notwithstanding both
arbitrators have no signed the same at the same time and in the
presence of each other.   chanroblesvirtualawlibrary chanrobles virtual law library

And clause 8 provides that:

Appeals to the Committee of the Association may be heard before a

meeting of all or any four or more of the Members of such
Committee.

Clause 11 provides:

The evidence and proceedings upon arbitrations or appeals may be

taken in a mercantile way, without regarding legal technicalities
respecting evidence.

Clause 12 provides:

Awards of the Committee on appeals shall be signed either by the

Chairman, Vice-Chairman, or acting Chairman of the Association for
the time being.

Plaintiff alleges that on the arrival in London of the hemp in

question, it was not in sound merchantable condition, and that it
was not of the grade specified in the contract. For such reason, it
demanded an arbitration under the provisions of the contract. That
an arbitration was had, and that it made findings as alleged in the
complaint, and that the defendant, through its London agent,
accepted and ratified the award of the arbitrators, and in legal
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

effect, plaintiff seeks to recover from the defendant on the findings

and the award made by the arbitrators.   chanroblesvirtualawlibrary chanrobles virtual law library

It is clear that under the contract, and upon the proof in the record,
plaintiff was legally entitled to an arbitration. It is equally clear that,
if an arbitration was had and held in the manner and form provided
by the contract, and that the arbitrators made findings, and based
thereon made the award, as plaintiff alleges, plaintiff in this action
would be entitled to recover from the defendant the amount found
due and owing by the arbitrators, subject only to the legal right,
and under a proper plea, of the defendant to defend upon the
ground of fraud or mistake in the arbitration. But in an action to
recover founded upon the award of the arbitrators, the plaintiff
must both allege and prove, by competent evidence, that the
defendant had notice of the motion of the plaintiff to arbitrate; that
the arbitrators were selected in the manner and form as provided
for in the By-Laws of the Manila Hemp Association; that the
arbitrators met and performed their duties, and made and
presented their findings, based upon which, they made and signed
their award; and that the defendant was either legally a party to the
arbitration or that it ratified and approved the arbitration after it
was made. Upon all of such questions, there is a failure of proof.
There is no competent evidence that arbitrators were ever selected,
as the By-Laws provides, who they were, or that they ever met in
the discharge of their duties, or of the time and place of their
meeting, or who was present. Neither is there any competent
evidence that the arbitrators ever made or signed any findings.
Neither is there any competent evidence that the defendant was
ever notified of the proposed arbitration, or that it book part in it, or
that it ever ratified or approved the alleged findings. The proof of an
arbitration should conform to the spirit and intent of the By-Laws of
the Manila Hemp Association.   chanroblesvirtualawlibrary chanrobles virtual law library

Under the By-Laws, for certain specified reasons, either party has a
legal right to an arbitration, and each person has a legal right to
select his own arbitrator, and it is the duty of the person desiring an
arbitration to notify the adverse party, so that he can select his own
arbitrator and be present or represented in the arbitration, if he
sees fit to do so. After the arbitrators have been selected and a
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

hearing is held and the investigation made, it is then the duty of the
arbitrators to make their findings, based upon which they make
their award, which should be in writing. The only competent
evidence of all such matters is the finding and award which is made
by the arbitrators. In other words, where a person seeks to recover
a judgment upon the findings and award of arbitrators, he must
both allege and prove that all of the conditions precedent, and that
the necessary legal steps were taken to have an arbitration, and
submit to the court either the original or an authenticated copy of
the findings and the award of the arbitrators, or in the absence of
such preliminary proof, he must both allege and prove that the
findings and award of the arbitrators have been ratified and
approved by the adverse party.   chanroblesvirtualawlibrary chanrobles virtual law library

There is no evidence of any one of those facts in the record. It is

true that the witness Sibley on behalf of the plaintiff testified that:
"The defendants, by their duly authorized attorney, Francis Adams,
accepted and approved of the award." That is not proof of any fact.
It is nothing more than the legal opinion of the witness. The
question as to whether the defendant "accepted and approved of
the award" is one for the court to determine from the actual facts as
to how, when and in what manner the defendant "accepted and
approved of the award." What was said and done, by whom it was
said, and when and to whom it was said, and if it was in writing, the
writing should be produced. Upon the proof of the actual facts, it
would then be for the court, and not for the witness, to say whether
or not the defendants "accepted and approved of the award."  chanrobles virtual law library

In the final analysis, where, as in this case, the plaintiff seeks to

recover upon the findings and the award of arbitrators, before it can
recover, it must both allege and prove a substantial compliance with
all of the material provisions of the By-Laws of the Manila Hemp
Association, and without such proof, it is not entitled to a judgment
upon the findings and award of the arbitrators.   chanroblesvirtualawlibrary chanrobles virtual law library

If it be a fact that the alleged findings and award of the arbitrators

was made in a substantial compliance with such "By-Laws," and
competent proof of that fact is submitted to the court, plaintiff
would then be entitled to judgment as prayed for in its complaint. In
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

such a case, the award of the arbitrators could only be modified or

set aside for a mistake apparent on the face of the record, or upon
the ground of fraud in the arbitration, both of which must be alleged
in a proper plea and proven as any other fact, which could not be
done under a general denial.   chanroblesvirtualawlibrary chanrobles virtual law library

Upon a mistake of fact, Corpus Juris, volume 5, p. 182, says:

Although an award cannot be avoided on account of a wrong

conclusion, drawn by the arbitrators from the facts before them,
which conclusion amounts to a mere mistake of judgment, a plain
misconception of the facts submitted, by reason of which it is made
to appear that the arbitrators must have rendered a different
decision had they proceeded in view of the true state of facts, about
the existence of which there could be no reasonable question, may
constitute a ground for avoiding the award. . . .

Upon the question of fraud, on page 187, the author says:

It is ground for setting aside an award that it was obtained by the

fraud, imposition, or other undue means employed a party to the
arbitration, or his agent, . . .

And again on page 189:

Fraud corruption, or misconduct of the arbitrators is ground for

setting aside the award, especially where one of the parties
participates therein. And, for obvious reasons, it has been held that
the rule applies, although the submission provides that the award
shall not be subject to exception or appeal, or shall be final or
conclusive. . . .

As to the operation and effect of an award on the merits, the same

author, on page 160, says:

As between the parties and their privies, an award is entitled to the

respect which is due to the judgment of a court of last resort. It is in
fact a final adjudication by a court of the parties' own choice, and,
until impeached upon sufficient grounds in an appropriate
proceeding, an award which is regular on its face is conclusive upon
Special Powers of Attorney with respect to Principal’s causes of action
85 - Robinson Fleming v. Cruz 40 Phil 42

the merits of the controversy submitted, and it is not for the courts
to otherwise inquire whether the determination was right or wrong,
for the purpose of interfering with it. The court possesses no
general supervisory power over awards and if arbitrators keep
within their jurisdiction their award will not be set because they
have erred in judgment either upon the facts or the law. . . . It is
the general rule that a valid award operates to merge and
extinguish all claims embraced in the stipulation. Thereafter the
submission and award furnish the only basis by which the rights of
the parties can be determined, . . . .

This case involves the application and construction of the By-Laws

of the Manila Hemp Association, is important to the hemp industry,
and is one of first impression in this court.   chanroblesvirtualawlibrary chanrobles virtual law library

In the interest of justice, and so that the case may be tried and
decided upon its actual merits, the judgment of the lower court is
reversed, and the case is remanded, with leave to the plaintiff to
submit competent evidence of the arbitration and the findings and
award of the arbitrators, and that the arbitration was made in a
substantial compliance with the By-Laws of the Manila Hemp
Association, and with leave to the defendant, in its discretion, to
amend its answer, and to both allege and prove that the arbitration
was fraudulent por that the arbitrators made a mistake, which is
apparent on the face of the record. Neither party to recover costs.
So ordered.