This  is  an appeal taken by plaintiff Rafael Carreon from an order  of the  Court  of First Instance  of Pampanga, granting a motion to dismiss filed by the defendants herein.

Plaintiff instituted this case on October 21,1953, against the  Province  of Pampanga,  and Rafael Lazatin, Emilio Cortez and Librado D.  Santos.   In his complaint,  plaintiff alleges, as first cause of action, that he owes a  parcel of land  situated in Duck Island, barrio Sto. Nino, municipality of Guagua, province of Pampanga, which was then and  is being  subdivided into  small  lots;  that, in order to facilitate the  sale thereof  to  the public, at a good price, in January, 1948, he applied,  from the Municipal  Council  of Guagua,  Pampanga,  for authority to construct,  at  his expense, a  bridge across  the Guagua River, between said Duck Island and the market site of Guagua; that said council referred his application  to the Provincial Fiscal, for opinion on the feasibility  of  granting  the  authority prayed for;  that on June  17,  1949, said  council passed Resolution  No. 70,  requesting the proper  authorities  to patronize  the  construction of the bridge aforementioned; that on April 12, 1950, the Provincial  Board of Pampanga passed  Resolution No. 303 appropriating P15,000 for said bridge and providing that the additional sum of F9,480,  more or less, needed  to complete its construction,  be borne  by the municipality of Guagua; that on April  18, 1950, the municipal mayor of Guagua wrote to plaintiff a letter suggesting that he donate  P10,000  for the completion of said bridge; that on August  14, 1950, plaintiff  wrote to Jose B. Lingad, the then Provincial Governor  of Pampanga, offering  to make said donation; that this officer signified the intention of the  Province of Pampanga to accept  the donation; that on April 25, 1961, plaintiff delivered to the provincial treasurer of Pampanga the sum of P5,000 on account of said donation, which the Provincial Board of Pampanga accepted by  Resolution No. 930, dated  June 30,  1951; that on August 3,  1951,  the Office of  the  District Engineer of Pampanga advised Carreon in writing that the construction of the bridge' had begun already  and  requested him to pay  the balance  of  said donation; that on August  16, 1951, Carreon  caused to be delivered  to the provincial treasurer of Pampanga the sum of P3,000, with the understanding that the balance of P2,000 would be paid later, "to cover expenses for the finishing touches of the bridge in question";  that, while said bridge was being constructed, on June 30, 1952, the new Provincial Board of Pampanga, composed of  defendants Rafael Lazatin, as Provincial Governor, and  Emilio Cortez and Librado D. Santos, as members, passed Resolution No.  1687, whereby "without any  valid reason",  they "illegally and maliciously  stopped the work" of construction  of said bridge,  and "illegally and  maliciously"  diverted the application of the balance of the funds appropriated therefor by the Province "to the construction of another bridge along the road between Angeles and Magalang"; and that, despite  repeated demands,  defendants had failed and refused, and still fail and refuse, to authorize  the continuation of the construction of the bridge in question.

By way of second cause of action, it is alleged in the complaint that, by reason of said "illegal and malicious" acts of defendants herein,  "particularly, librado D. Santos ", who is said to "have a grudge against the  plaintiff  because the  latter had work in the  last elections for the candidacy of  their  opponents,"  plaintiff had sustained damages  in  the  aggregate sum of P150,000, in  view of  which he prayed that judgment be rendered in his favor for said sum of P150,000,  apart from "ordering the defendants  to  immediately cause  the resumption of  the construction of the bridge in question until the  same is  fully completed."

On December 19, 1953, the Provincial Fiscal  of Pampanga,  purporting  to  act  on behalf of  the defendants,  filed an answer  admitting some  allegations  of the complaint and denying other allegations thereof,  as well as  setting up several special defenses and a P50,000 counter-claim for actual and moral damages  allegedly sustained  by them.  The court having later considered this answer as that of  the Province of Pampanga  only, defendant Cortes submitted his separate answer, whereas Atty. Eligio G,. Lagman,  filed  on behalf of defendant Santos  a motion  to dismiss.   Soon thereafter, Atty. Pablo D.  Cabrera filed, on behalf of "the defendants", another motion to dismiss upon the ground "that the complaint states no cause of action."  After due hearing the Court  of First Instance of Pampanga issued  an order dated March 29, 1954, granting said motion to dismiss and,  accordingly, dismissing plaintiff's  complaint,  without pronouncement  as to costs.  This order was predicated  upon the following reasons:

"The Provincial Board of Pampanga, in passing  Resolution No. 303 dated April 12, 1953, no doubt had in its mind the welfare of the people  of  the Municipality of  Guagua especially those  people who were already living or would transfer their residences  to the Duck Island of the said Municipality,  and  likewise had in mind that during: the time when they passed the aforementioned  resolution, they had only at their disposal the limited amount of P15, 000.00 so they  made a  proviso in the aforesaid resolution  that  for the completion of the construction of the aforementioned bridge, the Municipality  of  Guagna should have to defray  the  difference in the costs of construction.  When the  Provincial Board accepted the donation  of the  plaintiff herein,  the members thereof might  have or might not have  known  that the  prime interest of the plaintiff in offering the donation to defray  part of  the  expenses  for the construction  of  the bridge was  for  a  business  purpose,  that of realizing big profits from the lots  that have been subdivided in the  Duck Island.  In the offer of  the plaintiff to  defray the expenses of P10,000, he did not make or given  any condition to the Provincial Board that  would  bind  the Provincial  Board,  happen what  may, to complete the  construction  of the  bridge  now in question.  Considering  Mr. Carreon's purpose in giving  the  amount of P10,000, and in himself, he  might have considered it  a business transaction and was expecting  big profit, therefore, he should have made clear his offer in such a way that the offer of P10,000  and the acceptance by the Provincial Board  thereof would constitute a sort of a  contract.  Scanning very well  Exhibits 'A' and  '1'  and '2', we could not see anything therein where  a contract  existed either express or implied. We  can  see only  that  the Provincial Board wanted  to have a biridge across the  Guagua  River  connecting the barrio of Sto. Nino, Guagua to the  Duck  Island, and Mr. Carreon, with a big heart wanted  to have the said bridge constructed. We only can see from the letter  of Mr. Carreon that he  was  being philanthropic without in the least suspecting  that between the lines what he means  was profit and gain. The Provincial Board  in its Resolution No.  1687  dated July 30,  1952, in  reverting the  funds originally appropriated for the construction  of the bridge  to connect Duek Island to the poblacion  of Guagua to the  construction of a concrete bridge along the  road  between Angeles and Magalang, was in the exercise of its power and authority.  It is  not within the province of any officer but that of the members of the Provincial  Board to judge the  needs of the people of the province and the feasibility and reasonableness  of its  improvements.  The Provincial  Board, in passing the aforementioned last  resolution may have in  fact prejudiced the  private  interest  of the  plaintiff herein but  we  do not  see therefrom  that  the real  and true  intention  of the members of the board in  passing the said resolution  was for the  sole purpose of  prejudicing or damaging the  interest of the plaintiff as  he  had alleged in his  complaint.  The  Court, in the exercise of  its  jurisdiction, does not have  to interfere with the soundness of the  actions of  the  Provincial Board because  it  is only the said board that can decide whether what they have done is good or not for the  province, as the  members of the Provincial Board  has done in Resolution No. 1687.  The  Provincial Board of Pampanga, in passing its Resolution No. 303 dated April  12, 1950 might  have  believed  that the construction  of  the  bridge over the barrio  of  Sto.  Nino and the Duck Island was  for  the  best interest  of the people concerned, and the  Provincial Board,  in  passing Resolution No. 1687, might have also in mind the best interest of the province and it is not for the Court to  question as we have aforestated, the  reasonableness  and  soundness  of their actuations.   As we have  aforestated, the. Court cannot see that  there was a contract  either  express or implied,  between the Provincial Board  of  Pampanga, and  the members  composing it on the one hand and the plaintiff  herein on the other hand  for the completion of the construction of  the  aforementioned bridge. We only could see that the plaintiff wanted  to have big gains in the  guise of a philanthropic gesture which unluckily backfired.  This  being the case, we are of the opinion and so hold  that the plaintiff cannot compel the Province of Pampanga  and  the members  of its board to resume the construction of the bridge to connect the barrio of Sto. Nino, Guagua to  the Duck Island if in the decision of the Provincial Board, they  are not  yet in a position  to  construct the same and if they believe that the  resumption of  the construction of the same is not yet  timely. We likewise believe that the  members of the Provincial  Board of Pampanga,  namely: Defendants, Hon. Rafael  Lazatin, Hon. Emilio  P. Cortez  and Dr.  Librado. D. Santos, should not be held liable for any damage that the plaintiff herein may have sustained in the former's passing Resolution No. 1687, dated  July 80, 1952, because  in passing the same they have acted in their official capacities and within  the scope of the authority and power vested  in  them as members of the aforementioned provincial board.

"In  view  of  all  the foregoing, the  plaintiff's  complaint  filed against the  defendants herein  is  ordered dismissed. without  pronouncement as  to costs."

It would appear,  therefore, that this  order of dismissal is premised, in effect, upon the theory that the  Chairman and members of the Provincial  Board  had acted in  good faith  and within the scope of  their authority and that the allegations of the complaint to the contrary  are not true This  is clearly  a  reversible  error.  A motion to dismiss the complaint generally partakes  of  the  nature of a  demurrer, and, as such, it  hypothetically admits the truth of the  allegations of fact made in  the complaint. If said motion  assails directly or indirectly, the  veracity of the aforementioned allegations, it is improper to grant the motion upon the assumption  that the  averments therein are true and that those of the complaint are not.  The court should, either deny the motion, without prejudice to defendants'  right to plead,  as a  special  defense,  in his answer,  the  very issue upon which said motion is predicated,  or  proceed  to the reception  of evidence on the issue of  fact thus  raised,  before  settling the same. In the case  of Palma vs. Garciano, et al., L-7240  (supra, p 72), we said:

"* * * The order of  dismissal complained of is predicated  upon the theory that the  filing of the  informations above referred to, is 'presumed'' to have been  made 'in good faith' and that, in fact, the proper court had found  the existence of probable cause against plaintiff herein, contrary to  the  allegations  in the complaint, which specifically charges 'bad faith', lack of 'any probable cause', desire to give vent to 'personal  hatred  and vengeance', and  intent' to harass and embarrass the plaintiff  and to besmirch his  honor and reputation. The only question for  determination  by the court, at the  time of the issuance of said  order, was whether or not the complaint  states a cause of action.  This  implied that  said  issue was  to be passed upon  on the basis of  the  allegations of the complaint, assuming  them to be true.   Instead,  His Honor, the trial  Judge  inquired, into the truth of said allegations and, in effect, found them to be false. And this it  did without  giving the plaintiff an opportunity  to  prove his aforesaid allegations.  Thus, the lower court had, not only exceeded its jurisdiction,  by going beyond the purview of  the  issue posed by defendants motions to dismiss, but,  also, denied due process  of law  to  plaintiff herein, by,  in effect deciding the case on  the  merits,  before it  had been submitted  for  decision  and  before  plaintiff had had  a chance to introduce evidence  in support of the  allegations of his complaint."

Again, the very emphasis given in the order appealed from, to the  possible  good  faith of the  members of  the provincial  board  indicates  that,  otherwise, a cause  of action  would exist against them.  Indeed, as stated  in the Palma case:

"* * * it is wen settled that  when a public  officer goes outside scope  of  his  duty,  particularly when acting tortiously, he is not entitled to protection on account of his  office, but  is liable for his acts like  any private  individual (46 C. J. 1046; 22 R.  C.  L. -  478-479)."

Thus in  Mendoza vs. De  Leon  (33 Phil.,  508, 513)  it was  held:

"Not are officer  or agent of the  Government charged with performance  of  governmental duties which are in their nature  legislative, or quasi judicial, liable for the consequences of  their official acts, unless it be shown that they act willfully  and maliciously, and with the express purpose  of inflicting injury  upon the plaintiff" (Italics supplied.)

'The liability becomes even  clearer  when the act  performed involves  the exercise of corporate  or proprietary functions, rather than of duties which  are  strictly  governmental or  political  in  nature.   Referring  to the  rescission, by  a municipal council of  a  contract of lease for the operation of  a ferry, this Court declared, in said  case of Mendoza  vs. De Leon (supra):

"* * * it should  be  clear that  a municipality is not  exempt from  liability for the negligent  performance  of  its corporate or proprietary or business functions.  In  the  administration  of  its patrimonial property, it is  to be  regarded as a private  corporation or individual  so far as  its liability to  third  persons on contract or in tort is concerned.' Its contracts, validly entered into, may be enforced and  damages may be collected from  it  for the torts of its officers or agents  within  the scope of  their employment in precisely the  same  manner and  to  the same  extent as those of private  corporations or  individuals.  As  to such matters the principles  of respondent superior applies.  It is for  these purposes that the municipality is made liable to suits in the courts."

*           *        *           *         *           *       

"* * * in  administering  the   patrimonial property  of  municipalities,  the  municipal council  occupies, for  most  purposes,  the position of a board of directors of a private corporation.   In  disposing of  the local" public utilities, if the term be  used,  such as the fishing  and ferry rights, etc., they must execrise considerable judgment.  It  requires some considerable amount  of business  acumen to compel performance on the part of lessees of these privileges in accordance  with the  terms  of their leases and in  a manner which will not cause the property to deteriorate.  Questions must continually arise which  are not expressly provided for  in the contracts and which must be settled, if  possible, in a manner  that will preserve the just  claims  of the  municipality.  Indeed,  it  is not at  all improbable that on  occasion  the councilors  may have reason to believe that a particular contract has been rescinded by the other party or has  never been legally entered into,  in both  of which cases, decisive steps must be taken to safeguard the interest of  the  municipality.  Thus,  in  Municipality of  Moncada vs. Cajuigah  (21  Phil.  184), the  lessee  of a  municipal  fishery  was evicted  for failing to pay  his quarterly rents.  The municipal authorities rightly held that the  contract was rescinded but forcibly evicted  the lessee  instead or resorting to  the  courts.  Hence,  in an  action by  the municipality against the lessee and his bondsmen to  recover rent  arrears, damages were allowed  the lessee on  his counterclaim for the loss caused  by the forcible eviction.  Nevertheless,  we do not think the councilors could  have been held personally liable for their  error in  resorting  to  forcible  eviction  of the lessee.  Theirs was an error of judgment, and honest mistake on  their part as to the rights of  the municipality in the premises. We think  the rule  of personal  liability  should  be  with municipal councilors  in  such matters as it is with the directors  or managers of  an ordinary private  corporation.

"'Under the  rule  that directors are not liable for mistakes  of judgment,  it  follows naturally  that they  are not liable for  the mismanagement  of  the  corporate affairs where  such mismanagement is a mistake  of judgment.  The  wisdom of this rule  is  not only  approved by common experience  but  by  law  writers and all courts.   A rule so rigid as to hold directors  personally liable  for honest  mistakes in  corporate management  would deter all prudent business men for accepting such  positions.  The remedy of stockholders in all such cases is by a change  of the directory.   * * * The rule is that courts will not  interfere even  in  doubtful  cases. But directors and managing officers may be liable  for mismanagement to warrant the interposition of a court  either  as  against the contemplated action  of the  directors,  or a majority of  the stockholders,  or to  give  relief by way  of  damages   after  the action  has been taken; a case  must  be made out which plainly shows  that  such action is so  far opposed to the true interests of  the corporation  itself  as  to lead  to the  clear inference  that no one thus  acting could have been influenced  by  any  honest desire to secure such interests,  but that he must have  acted with an  intent  to  subserve  some outside  purpose,  regardless  of  the consequences  to the corporation, and in a manner inconsistent with its interest.'  (Thompson on Corporations,  section  1298.)

"In the case at  bar, there  is  not  a  scintilla of evidence  that there was any  justifiable reason for forcibly  evicting the plaintiff from the  ferry which  he had  leased. On the  contrary, the  defendant councilors attempted to justify their action on the  ground that the ferry which he was operating was  not the one leased to him; this, inspite  of  the fact that the vice president had personally placed him in possession of it more than  a year  before, and  the fact  that he had  operated his ferry for over a year, evidently with the knowledge of the N defendants. The evidence is so clear that  the ferry of which the plaintiff was dispossessed was the one which he had. leased  that  no  reasonable man would  entertain any doubt whatever upon the question.  Hence, we cannot say  that in  rescinding  the contract with  the plaintiff, thereby making the municipality. liable to an action for damages  for  no valid reason at all,  the  defendant councilors were honestly acting for the interests of the municipality.  We are, therefore,  of  the opinion that  the defendants are liable  jointly and severally  for the damages sustained by the  plaintiff from the rescission of his contract of  lease of  the  ferry  privilege  in  question."   (Italics supplied.).

It is not  necessary for  us,  and  we do  not  mean,  to determine,  at this stage of the proceedings, whether the function involved  in the approval  of Resolution  No. 1687 of  the Provincial Board of Pampanga,  dated  July 30, 1952, is  governmental  or  corporate  in  character. The resolution of such  question may  be deferred until such time as the case may be ready  for decision on the merits. We  do hold, however, that the allegations of the complaint state prima fade  a cause of action against the defendants and that,  consequently, plaintiff is  entitled to  an opportunity  to prove the allegations of his complaint, before the validity of his claim could be passed upon.

Wherefore, the  order appealed from  is hereby reversed and let the records of this case be remanded to the lower court for further proceedings,  in conformity  with this decision with the costs  of this instance  against the defendants.  It is so of ordered.

Paras,  C.  J,,  Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J.  B. L.,  Endencia, and Felix, JJ., concur.