G.R. No. 100942 August 12, 1992
LUCIO TAN, petitioner, vs. THE HON. COURT OF APPEALS and TERESITA SANCHEZ, respondents.

FACTS

Private respondent Teresita Sanchez invested P100,000.00 in the Manila Bar restaurant, owned by Nilo Tiglao, under a Contract of Investment dated May 24, 1981, which entitled her to 14% annual interest and allowed withdrawal at any time. On March 1, 1982, Tiglao assigned all his rights and interests in the restaurant to petitioner Lucio Tan. Upon learning of this, Sanchez demanded the return of her investment from Tan. Tan acknowledged the obligation and executed a Promissory Note dated March 26, 1982, promising to pay Sanchez her P100,000.00 investment under the following terms: P50,000.00 payable upon signing a contract of lease with the lot owner, and the balance of P50,000.00 payable on or before the expiration of that lease contract, but in no case longer than two years, regardless of the outcome of the operation. The referenced lease contract was concluded on February 6, 1982, for a period of two years from April 16, 1982. After two years, Sanchez demanded payment of the P50,000.00 balance. Tan refused, claiming he was ejected from the premises by virtue of a writ of execution in an ejectment case to which he was not a party, which he argued constituted a fortuitous event that extinguished his obligation. Sanchez filed a suit. The Regional Trial Court ruled in favor of Sanchez, holding that the ejectment was not a fortuitous event and that the contract was the law between the parties. The Court of Appeals affirmed, holding that the promissory note created a simple obligation with a period and that Tan’s new defense of failure of consideration was not raised in the trial court.

ISSUE

1. Whether the defense of failure of consideration was properly raised in the trial court.
2. Whether the petitioner’s eviction from the restaurant premises constituted a fortuitous event that resulted in a failure of consideration for the promissory note.
3. Whether the obligation under the promissory note was conditional upon the petitioner’s continuous operation of the restaurant for two years.

RULING

The Supreme Court DENIED the petition and AFFIRMED the decision of the Court of Appeals.
1. The defense of failure of consideration was not raised in the trial court and was therefore deemed waived. Tan’s original defense in his Answer was solely that of fortuitous event. His testimony referring to “normal operation” did not constitute a pleading of the defense of failure of consideration. Defenses not pleaded in the answer are deemed waived.
2. The petitioner’s eviction was not a fortuitous event. A fortuitous event is an act which, though foreseen, cannot be avoided, such as natural calamities, and must be independent of human will, impossible to foresee or avoid, render fulfillment impossible, and involve no participation by the obligor. The ejectment did not meet these criteria.
3. The obligation under the promissory note was a simple obligation with a period, not conditional upon the continuous operation of the restaurant. The terms were clear: the balance was payable on or before the lease expiration, regardless of the outcome of the operation, and in no case longer than two years. The plain meaning obligated Tan to pay the balance within the two-year period irrespective of the business’s success or his continued operation. Any ambiguity in the instrument is resolved against the maker who caused it. Equitably, Sanchez was entitled to recover her investment, which was promised a fixed return and was withdrawable at any time, independent of the business’s fortunes.