1. Power of Court to Fix the Period.—When the period as in the case of condition has been left to the discretion of one of the joint and several debtors the court shall be given the right to fix the period, as provided by Article 1128 of the Civil Code. This provision is made to forestall fraud since leaving the determination of the period at the will of the debtor is tantamount to putting the creditor at the mercy of the debtor. It also gives life to the contract which otherwise should have been void for if he does not determine the time the contract will remain suspended indefinitely which is almost equivalent to no contract at all.

Article 1115 of the Civil Code provides that "When the fulfillment of the obligation depends upon the exclusive will of the debtor, the conditional obligation shall be null and void." This is a complement of Article 1256 which reads: "The validity and fulfillment of the contracts can not be left to the will of one of the contracting parties.” These articles prevent the creation of illusory obligation. (See also 8 Manresa, page 13.)

When the payment however has been made prematurely by one of the joint and several debtors not knowing the condition, he will only be entitled to interest but not reimbursement, the reason being that he will have to pay any way when the time comes should any of the creditors ask him to pay for the whole. Article 1126 of the Civil Code provides: "The interest is allowed since the debt is not yet due" and no man should enrich himself at the expense of another. The creditor can however demand for the fulfillment of the contract notwithstanding the period stipulated if when after the obligation has been contracted it appears that the debtor or debtors (as the case may be) is insolvent unless he gives security for the debt, (Article 1129, par. 1) or when he does not give to the creditor the security he is bound to give, (Article 1129, par. 2) or when by his own acts he has reduced such security after giving it, or when it disappears through an unforseen event unless it is immediately substituted by a new one equally safe. (Article 1129, par. 3.) This usually happens when the debtors are bound by different ties. (8 Manresa, page 197.)

2. Obligation Complied with if Condition is Prevented by any Joint and Several Debtor.-Article 1119 of the Civil Code provides that "The condition shall be considered as complied with when the obligated party voluntarily prevents its coinpliance." This refers to that act of any of the joint and several debtors which impedes the fulfillment of the obligation even though he is not the one especially affected by the contract. (8 Manresa, pages 197-8.) This article prevents any bad faith on the part of the debtor to prevent the realization of the obligation imposed upon him so that the law always tries to make the obligation effective. (8 Manresa, page 134.) Hence the writer thinks that the above provision is made to forestall fraud which any debtor may make use of in avoiding his liability.

(To be Continued.)

PHILIPPINE LAW JOURNAL

Published monthly, August to April inclusive, during the academic year, by the alumni and students of the College of Law, University of the Philippines.

FACULTY ADVISORY COMMITTEE

Jorge Bocobo, Dean of the College of Law.

Quintin Paredes, Professorial Lecturer on Criminal Law.

Enrique Altavas, Professorial Lecturer on Land Registration and Mortgages.

AUGUST, NINETEEN HUNDRED AND NINETEEN

NOTE AND COMMENT

FRANCISCO VENTURA, SENIOR

Editor.

In the September issue of the PHILIPPINE LAW JOURNAL (V. 5, No. 2), there appeared the lecture of Judge Charles S. Lobingier on the American Courts in China delivered last year before the Law Forum of the College of Law. Recently on his second inaugural address as President of the Far Eastern American Bar Association, he spoke on the same subject in a more exhaustive manner. Mr. J. R. Jernigan, who wrote the foreword to the address when published by the said Bar Association, commented upon it in this wise:

"The second inaugural address of the President of the Far Eastern American Bar Association is a very instructive paper on the history of the American Courts in China. It is full in scope and exhaustive of the subject, and there has been no similar deliverance heretofore as informing and timely. The professional and nonprofessional American citizen can read Judge Lobingier's address with the satisfied assurance that the principles of the jurisprudence of his country are being fast developed into systematic form in China and, under the interpretation of the learned lawyer entrusted with their application, are impressing the Chinese mind with the independence and equity of American courts." In conclusion he said, "In the address Judge Lobingier

gives the history of the court and the workings since its creation. The sources of the laws from which the court derived its powers are pointed out and explained, the extent of its jurisdiction clearly marked, and what is no less interesting and important is the reference to the record the court has made; and it is a creditable record. For there is a tribun al to which he can appeal with confidence in its competency and justice. And it was about time to substitute, for disjointed and irregular system of courts, that other system whose decisions have given to the American people a jurisprudence of their own. The civilization of a people is best judged by the laws which govern them and the manner in which such laws are administered. When the Chinese saw that the consular court represented the judicial function of the American government in China they could not have had a very exalted notion of that function and, although it required sixty years to recognize and admit this fact, it is now a cause for congratulation that it has been admitted by the creation of a regular United States Court to exercise the judicial function. And it is another cause for congratulation that the present Judge of the court is a lawyer in whose ability and impartiality the public ccafidence is firmly fixed. The address should be carefully read by the members of the Bar Association and the nonprofessional American citizen as well."

RECENT CASES

(Decided by the United States Supreme Court.)
(By F. V.)

UNITED STATES; CONTRACTS; IMPLIED WARRANTY; SAFE WORKING CONDITIONS.-The insertion in a contract for the building of a dry dock of a requirement that the contractor shall relocate a sewer running through the premises in accordance with the plans and specifications furnished by the government, which prescribe the dimensions, material, and location of the section to be substituted, imports a warranty is not overcome by general clauses in the contract requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance. (Per Brandeis, J., in United States v. George B. Spearing; George B. Spearin v. United States, decided December 9, 1918, and reported in U. S. Adv. Ops. January 1, 1919, p. 36.)

UNITED STATES; CONTRACTS; FORMAL REQUISITES; IMPLIED WARRANTY; PAROL-EVIDENCE RULE.-Reliance by a public contractor upon a warranty on the part of the government, implied by law, is not precluded either by the provision of U. S. Rev. Stat. 3744 (Comp. Stat. 1916, 6895), that contracts of the Navy Department shall be reduced to writing, nor by the parol-evidence rule. (Id.)

UNITED STATES; CONTRACTS; BREACH; ANNULMENT.—The government's breach of an implied warranty as to the adequacy of a sewer when it shall be relocated according to the government's plans and specifications by the contractor

for the building of a ary dock, followed by the government's repudiation of all responsibility for the past and for making working conditions safe in the future, justifies the contractor in refusing to resume the work, and his refusal furnishes no justification to the government for annulling the contract. (Id.)

DAMAGES; FOR BREACH OF GOVERNMENT CONTRACT.-The wrongful annulling by the government of a contract for a public work entitles the contractor to compensation for all losses resulting from the breach. (Id.)

CONSTITUTIONAL LAW; CLASS LEGISLATION; EQUAL PROTECTION OF THE LAWS; DUE PROCESS OF LAW; LICENSING COMMISSION MERCHANTS.-A state may forbid the sale of farm produce on commission without an annual license to be procured from the state board of agriculture upon a proper showing and a bond conditioned to make honest accounting, and may impose a license fee of $10, as is done by Kan. Laws 1915, chap. 371, without abridging constitutional rights and privileges of grain dealers carrying on business in the state, or depriving them of the equal protection of the laws, or taking their property without due process of law. (Per McReynolds, J., in W. S. Payne, L. H. Powell et al. v. States of Kansas Ex Rel. S. M. Brewster, decided Dec. 9, 1918, and reported in U. S. Adv. Ops., January 1, 1919, p. 39.)

APPEAL; OBJECTIONS WAIVED BELOW.-The objection that the individual rights of members of a co-operative news-gathering and publishing organization may not be enforced in an equity suit brought by the organization as a corporate entity will be regarded by the Federal Supreme Court as waived, where the suit in substance was brought for the benefit of complainant's members, and no specific objection based upon the want of parties appears to have been made below. (Per Pitney, J., in International News Service v. Associated Press decided December 23, 1918, and reported in U. S. Adv. Ops., January 15, 1919, p. 79.)

LITERARY PROPERTY; NEWS.-As between rival news-gathering and publishing agencies, news must be regarded as quasi property, irrespective of the rights of either as against the public. (Id.)

UNFAIR COMPETITION; PIRATING NEWS; PROPERTY RIGHTS.— No general and absolute property in news as such is essential to the right of a newsgathering and publishing agency to protection in a court of equity against unfair competition by a rival agency. (Id.)

EQUITY; CLEAN HANDS; RELIEF AGAINST; PIRATING NEWS.The practice of a news-gathering and publishing agency of taking the news of a rival as a "tip" to be investigated, and, if verified by independent investigation, does not necessarily show such an unconscientious and inequitable attitude towards its rival— such being the common practice among news agencies-as to fix upon it the taint of

unclean hands and debar it on that ground from relief against the bodily appropriation of its news matter by such rival, either in its original form or after re-writing without independent investigation and verification. (Id.)

INJUNCTION; AGAINST UNFAIR COMPETITION; PIRATING NEWS.— A co-operative association of newspapers organized for the gathering, distributing, and publishing of news may enjoin a rival news agency from selling as its own news taken from the bulletin issued by the former association or any of its members, or from newspapers published by them.

(Id.)

(Decided by the Supreme Court of the Philippine Islands.)
(Reported by A. C.)

BAILMENTS; LIABILITY OF BAILEE; LOSS THROUGH ACCIDENT.— Where plaintiff left 160 photographic films with defendant to be washed and refixed, and two or three days later said films were burned in an accidental fire which occurred in defendant's place of business, Held, That defendant is not liable. This was a bailment "locatio operis faciendi causa," which term is applied to that bailment where compensation is given for labor and service done upon a chattel or in connection with it; in this bailment ordinary care and diligence are required of bailee and is not liable for the inevitable loss or destruction of chattel, not attributable to his fault. (Per Street, J., in Brown vs. Robert, Inc., R. G. No. 14390, decided June 24, 1919.)

ANNULMENT OF MARRIAGE; DURESS; AGE.-Plaintiff, 12 years of age asked for annulment of marriage between her and defendant, 21 years old. Parents of plaintiff forced her to answer "Yes" to every question put to her by the protestant minister who performed the marriage ceremony. After ceremony, she went home and never sustained marital relations with defendant who alleged that there was consent for they were in love with each other. Held, The tender age of plaintiff, the natural influence which a father and mother would have over such a child, and particularly to the plain and straightforward testimony of the girl who appears never to have had, nor now to have any desire to live with defendant, shows that consent of girl was obtained by force and that after the marriage it is proved that she did not freely cohabit with said defendant as his wife. (Per Malcolm, J., in Bocareli vs. Misland, R. G. No. 13882, decided June 25, 1919.)

PROBATE OF WILLS; ITS REQUISITES; CONSTITUTIONALITY OF ACT NO. 2645.—Plaintiff alleges that Act No. 2645 is void and unconstitutional because the fact that Act of Congress of July 1, 1902, ratifies and confirins all acts of Philippine Commission to this date; and Act 190 being one of them, the Philippine Legislature cannot amend section 618 of said Act 190 by enacting Act No. 2645. Held, Congress has ratified and confirmed only in its Act of July 1, 1902, the action