GR L 3387; (November, 1906) (Digest)
G.R. No. L‑3387
November 22 1906
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FACTS
1. Defendants entered into a contract (16 Mar 1904) with the U.S. Army quartermaster to erect sixty‑five frame buildings at Fort McKinley, Manila.
2. Plaintiffs (partners) contracted with defendants (20 Apr 1904) to furnish all masonry, carpentry, roofing and incidental work for fifteen of the buildings (the “Lieutenants’ Quarters”) and to complete the work within eight months, commencing no later than 10 May 1904.
3. Defendants were to supply all necessary materials and deliver them to the site; plaintiffs were to be paid 1,400 pesos per building in installments.
4. Defendants failed to provide the required materials timely, citing bad weather and transportation difficulties (letter dated Nov 1904). Consequently, work was halted by the commanding general of the U.S. Army on 4 Jan 1905, and plaintiffs could not finish the contract.
5. Plaintiffs proved that 64 % of the contracted labor had been performed, receiving 9,989.25 pesos, leaving a balance of 3,450.75 pesos.
6. During the suit one plaintiff‑partner died; defendants urged that a personal representative be joined under Sec. 119 of the Code of Procedure.
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ISSUE
1. Whether the defendants’ failure to supply materials constitutes a breach excusing the plaintiffs’ non‑completion and obligating the defendants to pay the balance of the contract price.
2. Whether the death of a partner during pendency requires the appointment of a personal representative before the suit may proceed.
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RULING
1. The Court affirmed the finding of fact that the plaintiffs’ inability to complete the work was caused by the defendants’ failure to furnish materials as required. Under the contract’s penalty clause, no forfeiture attaches when delay is due to material supply, thus the defendants remain liable for the unpaid portion. The plaintiffs are entitled to the balance of 3,450.75 pesos.
2. Sec. 119 of the Code of Procedure does not apply to actions instituted by a partnership; the surviving partners may continue the suit as representatives of the partnership (Art. 229, Code of Commerce; Wahl v. Donaldson Sim & Co.). Consequently, the action proceeds without a personal representative for the deceased partner.
3. The lower court’s judgment awarding the balance to the plaintiffs is AFFIRMED with costs. Judgment to be entered after ten days; the case shall be remanded for proper entry.
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