Plaintiff, Rio  y Olabarrieta, is a  copartnership organized and existing under the laws of the  Philippine Islands, with its  principal office in the City of Manila. The defendant, Yu  Tec & Co., Inc.,  is a  domestic  corporation, with its office in the City of Manila,  and the defendant Calvin is of age and a resident of Manila.

Plaintiff alleges that on December  5, 1923, the defendant company, which was then a limited partnership, authorized its  agent, J. V. Molina, to find a purchaser or a lessee of a tract of land  belonging to  it, situate on Calle Velasquez, Tondo,  City of Manila, which has an area of 20,000 square meters and which is particularly described in the complaint. That within the time granted its agent found a purchaser in the name of  the plaintiff which offered to purchase the land for the sum of P40,000, and that Molina, as its agent, made known its offer to the defendant company which refused to accept it, but did offer to sell the land for P42,000, of which P7,000 was to be paid on the signing of the deed, and the balance within two years, with  interest at the rate of 8 per cent per annum, P10,000 at the end of the first year,  and the remaining P25,000 at the end of the second year,  all to be secured by a  first mortgage.  That within the period fixed  by the  defendant company, the  offer of P42,000 was accepted by the plaintiff which was then  and there  ready and willing to sign the necessary papers  and to make  the first payment of P7,000.   That from one excuse or another, the defendant company refused to carry out the agreement.  That the defendant Calvin,  with  full knowledge of all the facts and within the specified period, fraudulently conspiring with the defendant company,  entered  into a contract on June  9, 1924, by which he purchased the property from the company.  That  by reason thereof plaintiff was damaged in the sum of P12,000,  and prays for a decree that the sale to  Calvin be declared null and void, and ordering the defendant company  to  comply with the contract, and to execute a deed to the plaintiff, and ordering it to pay the sum of P12,000 as  damages, together  with costs.

For answer the  defendant company denies all  of  the material  allegations of the complaint, and as a further  and separate  answer alleges that the alleged agreement set  out in the complaint was not made or created by any deed of conveyance  or other instrument in writing subscribed by the defendant or its authorized agent.

For answer the defendant Calvin made a general  and specific denial  of all of the material  allegations  of  the complaint.

After a trial upon such issues, the court rendered judgment  in  favor of the plaintiff  and against the  defendant corporation for P6,994.65, with legal  interest  from  the filing  of the complaint and costs, and denied the prayer of the plaintiff for the execution to it of a deed of the property by the defendant corporation, and dismissed the action as to  the defendant Calvin

From that judgment, the plaintiff appeals and makes the following assignment of error:



JOHNS, J.:

It will  be noted that, although the complaint alleges that the defendant  company authorized Molina as its agent "to look for purchasers or lessees of a piece of land" in question, it does not allege how such authority was created or whether it was oral or in writing.  In the further answer of the defendant company, it is specifically alleged that the agreement for the sale in question was not made in writing.  Upon such issues, plaintiff produced  some oral evidence tending to show that it had accepted the proposition to purchase the property at an agreed price of P42,000, and upon the terms and conditions alleged in the complaint, all of which testimony was received without objection on the part of the defendant.

The question  as to  whether the plaintiff relied upon a written contract did  not appear during the trial until at the close of the testimony of Tan Lee Wan, at which time the defendant promptly, filed motions to strike out the depositions of Molina and Tan Lee Wan. The  only written documents material to this opinion are Exhibits B and  C, which are as follows:


It will thus be seen that if Exhibits B and C had been followed with a  document of sale by Molina, which satisfied the requirement of the Statute of Frauds, and which was made within the term  and scope of his authority, plaintiff would have had a good cause of action.  It will be noted that Exhibit B  is dated March 3, 1924, and among other  things recites:


Exhibit  C, which fixes  the price of the property  at P42,000, and the terms and conditions of the sale, is dated March 15,  1924.   By the terms and provisions of Exhibit B, time is  made the essence of the contract,  which,  in the absence of  renewal or extension, would expire on March 18, 1924.  Without  a  renewal or  extension after that date, Molina's authority to sell the property expired by its own terms on that date, and ceased to exist.

If such written authority did exist, the testimony for the plaintiff, which  went in without objection, would be competent and material.   If it did not exist, it  would be incompetent and immaterial.  For such reasons, the failure of the defendant to object to  the  oral testimony at the time of its introduction was not  a waiver of its legal right to make such objection at the time when  it did appear that plaintiff was not relying on a written contract.   Defendant's motions to strike were timely made and should have been sustained.

In Gard vs. Ramos, (138 Pac, 108),  the Supreme Court of California  says:

"Counsel for  appellant,  however, contends that during the trial  the defendant waived the issue as to the statute of frauds by his  failure to object to the oral evidence offered in proof of the agreement to purchase the goods at the time of the offer of such evidence.   This  contention cannot be sustained, for the reason that the oral  evidence offered in proof of  the agreement in question, while not of itself sufficient to establish it, was one of the steps in the  order of proof required by the statute of frauds, and was still admissible  when followed by the other evidence required by the Code in order to take the agreement out of the  statute."

That is good law and applies  with peculiar force to the facts  shown in this  record.

The real question  involved in  this case is  the legal construction to be placed upon section 335 of the Code of Civil Procedure, known as the Statute of Frauds, which reads as follows:


It must be conceded that if,  on or before the 18th of March, 1924, Molina had made a legal tender of the P7,000 and  declared himself ready and willing to execute a first mortgage lien upon the property for the remaining P35,000, upon the terms and conditions stated in Exhibit C, he would then have  been  in a position to enforce the specific performance of the contract.  That was not done by either Molina or the plaintiff.  Neither is there any evidence of any  kind of a written contract between the plaintiff and the defendant company.

Before you can enforce the specific performance  of a contract or recover damages for its non-performance, there must be a valid contract to enforce, and there must be two parties to the contract, and it must be mutual.

The question involved in this case is the  purchase and sale of real property, and the law specifically provides that a contract therefor  is void  "unless the authority of the agent be in writing and subscribed by the party sought to be charged."

The only written authority of the agent to sell and dispose of the property on any terms and conditions is Exhibits B  and C, and by the express  terms of Exhibit B, time is made the essence  of the contract.  After the 18th of March, 1924,  Molina himself could not enforce the specific performance of Exhibit B.  How then and upon what legal principle can it be enforced by the plaintiff?  Section 335 of the Code of Civil Procedure is clear and explicit and means what it says.  There is no  evidence in the record of any written contract between  the  plaintiff and the defendant corporation  for the sale and  purchase of the real property in question.

Again, under all of the authorities, any renewal or extension of a written contract, which the law requires to be in writing, must also be in writing, and upon that point, there is also a failure of proof.

The record is conclusive that the name of the plaintiff as purchaser was not disclosed or made known to the defendant until long after the 18th of March, 1924, and some time after the return of Judge Camus.  In that situation and upon the facts  shown in  the record, how could the defendant corporation enforce a  specific performance of the contract  against the plaintiff?   If the defendant  could not enforce the specific performance against the plaintiff,  how and upon what legal principle can the plaintiff enforce a specific performance against the defendant corporation?  In the very  nature of things, their respective legal rights must be mutual and reciprocal.

There  is no rule of law by which  Exhibit B could be construed as a contract for the sale of the property.  Under its most liberal  construction, it is nothing more  than an authority to sell, between which there is an important legal distinction.  While  Exhibit B might be construed as fixing the price, it does not specify the terms and conditions upon which  the sale was to be made.  Hence, the necessity of Exhibit C.  But,  here, again, it will be noted  that  Exhibit C is not addressed or directed to any one, and that the only person mentioned in Exhibit C  is that of Molina as broker.

Again, we repeat that the only writing ever signed by the defendant is  Exhibit B, which gives Molina  authority to sell, and which, by its own terms, is confined and limited to March 18, 1924, and Exhibit C, which does nothing more than to specify and define the terms and conditions of any sale made by  Molina.  Hence,  it must follow that if Exhibit B  expired on  March 18,  1924, that fact  would destroy the legal force and effect of Exhibit C.  That is to say, that, in the absence of a renewal or extension in writing signed by the  party to be charged  or its agent, Molina had no authority to sell the property upon any terms or conditions after March 18, 1924.  There is no written evidence of any renewal or extension, or any written contract thereafter to  make the sale between either Molina  and the corporation  or the plaintiff and the corporation.  It may be that after March 18, 1924, there were verbal  negotiations between  the parties with that  end in view, but  the  stubborn fact remains that,  legally speaking,  no sale of the property was consummated on  or before  March  18,  and that thereafter Molina had no authority to  sell the land.

The plaintiff contends that this  court has placed a more liberal  construction  upon the  Statute  of Frauds than the courts  of the United States.   That is  not tenable.   For many and different reasons, the Statute of Frauds has been more or less criticised, but it has become almost an universal statute, and is upheld and sustained by  all the courts, the reasons for which are very apparent.

From what has been  said,  it follows  that there is no merit in  plaintiff's appeal, and that the judgment of the lower court in  favor of  the plaintiff is  reversed,  and the complaint dismissed, with  costs for the defendant-appellant against the plaintiff.   So ordered.

Avanceña,  C.  J., Street,  Villamor, Ostrand, Romualdez, and Villa-Real, JJ., concur.