FIRST CAUSE OF ACTION

FIRST CAUSE OF ACTION

1. That plaintiff is a single proprietorship firm duly established and existing under the laws of the Philippines with principal office address at 8 Fairlane Street, Fairlane Subdivision, Marikina, Metro Manila; and defendant is of legal age, Filipino, married, and with residence address at 29 Palm Drive, Bajada, Davao City, where summons may be served;

2. That on January 27,1979 defendant and plaintiff executed a memorandum of agreement whereby defendant shall specifically advance unto plaintiff for the latter's logging operations with ETCO TIMBER CORPORATION at General Santos City which corporation, the proprietor of plaintiff's firm, NEVILLE Y. LAMIS is now President likewise thereof, the sum of ONE HUNDRED THOUSAND PESOS (P100,000.00) payable as follows:

a) IMMEDIATE; UPON SIGNING OF THIS MEMO OF AGREEMENT .................................................P 50,000.00;

and

b) TO BE RELEASED ONE WEEK FROM DATE HEREOF............................................................ P 50,000.00

/Par. A-1, (a) & (b)

copy of which memorandum of agreement is herewith attached as Annex "A" hereof

3. That to the aforesaid conditions defendant only complied and released the sum of P50,000 upon the signing of the agreement and failed to release the balance Of P50,000 unto pig within one week from date of the memorandum of agreement. inspite of the latter's repeated calls and demands for the release of the same (copy of one of which demands is herein attached as. Annex "B " hereof, and defendant refused and still refuses to release the said amount up to the present to the prejudice of the plaintiff's logging operation and productions;

4. That the performance of aforesaid obligation is now long overdue and defendant just simply ignores the same;

SECOND CAUSE OF ACTION

1. Plaintiff reproduces herein the allegations in paragraph 1 of the First Cause of Action

2. That under the same memorandum of agreement in paragraph A No. 2 (a) thereof defendant have covenanted himself unto plaintiff to deliver one (1) unit of 'D80A-12 Komatsu Bulldozer with winch in good operating condition, for a value of P200,000.00;

3. That the bulldozer delivered however to the defendant by the plaintiff was one outside of the specifications covenanted by the parties as it was later found out by plaintiff after defendant's mechanic have dismantled the same for repairs before operation, Chat the unit was not D80A-12 but an outmoded model of Komatsu bulldozer D80A-8 which is much lower in power than the D80A-12 originally contracted hence, defendant evieted his warranty under the said memo agreement of 'GOOD OPERATING CONDITION' and 'D8O-A' to the great prejudice of plaintiff;

4. That the actual value of the tractor model delivered by defendant to plaintiff is currently tagged at only between P120,000 to P150,000 at well established outlets thereof and not to reach P200,000 or even P170,000 as valued by defendant.

THIRD CAUSE OF ACTION

1. That plaintiff reproduces the allegation of paragraph 1 of the First Cause of Action to form an integral part hereof;

2. That under the same memorandum of agreement, aforesaid defendant further failed to deliver unto plaintiff the 'JH-65 Payloader with log-grapple, complete and in good operating condition one week after date of said contract,' in open defiance of paragraph A No. 2 (b) hereof, the pertinent provision of which is herewith reproduced to wit;

3. That the performance of aforesaid obligation by defendant has been long overdue and in spite of repeated calls and demands by plaintiff of its delivery defendant refused and still refuses to deliver the same in violation of the covenant and to the great prejudice and damage of the plaintiff;

FOURTH CAUSE OF ACTION

1. That plaintiff reproduces all the allegations contained in paragraph I of the First Cause of Action to form likewise an integral part hereof;

2. That by reason of the non-performance of defendant, plaintiff suffered actual financial losses, aside from loss of business good will in its failure to ship and comply with the terms of the agreement between itself thru ETCO TIMBER CORP. and their Japanese buyer, MITSUI & CO., LTD. of Tokyo, Japan under which plaintiff having been assured of the ' compliance of defendant's covenant accepted to supply logs to MITSUI & CO., LTD., in the volume of about 2,000 cubic meters equivalent to U.S. $200,000 or approximately equivalent to p 1,460,000 under Mitsui Foreign Letter of Credit No. G/HK780014 as opened on 18th of November 1978 thru SUMITOMO BANK, LTD. 8 Queen's Road Central, Hongkong and coursed thru Equitable Banking Corporation under their reference No. O.B.-L.C. 78/893 as amended to expire on February 28,1979 copy of which L/C and extension are hereby attached as Annexes "C" and "C-1 " hereof of which defendant has the full knowledge thereof;

FIFTH CAUSE OF ACTION

1. That plaintiff reproduces ail the allegations contained in paragraph I of the First Clause of Action to form an integral part hereof;

2. That by reason of the non-performance and breach of defendant's covenant plaintiff suffered further losses in the repairs of the unit maliciously misrepresented to by defendant which amount is no less than P6,000 for labor and parts, and further suffered a great period of time loss as caused by the non- operating condition of the unit at the time of delivery thereof and several months thereof thereafter.

SIXTH CAUSE OF ACTION

1. That plaintiff reproduces the allegation contained in paragraph 1 of the First Cause of Action and made an integral part hereof;

2. That by reason further defendant's non-performance in the contract, plaintiff suffered moral damages by the evident loss of its credit standing and commitments as well as mental anxiety and embarrassment to its creditors and suppliers in the equivalent amount of not less than P30,000.00;

3. That the acts of defendant merits an imposition of exemplary damages which the plaintiff asks this Honorable Court to be fixed at P20,000.00;

4. That to enforce its rights the plaintiff has availed of the legal consultations with special luminaries in Manila, to which in representation thereof, it has spent no less than P3,000.00;

SEVENTH CAUSE OF ACTION

1. That plaintiff reproduces the allegation contained in paragraph 1 of the First Cause of Action as intregal part hereof;

2. That by reason of the saturated misrepresentations made by defendant and with the hope in view that defendant may be able to comply with his obligations, should proper commercial documentation in good faith are executed, plaintiff herein unhesitatingly heeded to the requirement of defendant and executed a promissory note for P55,000.00 inclusive of P5,000 usurious interest thereon for a period of 30 days, issued on January 26,1979 to become due on February 28, 1979, and delivered to defendant on January 27, 1979 to cover the release of the first obligation of cash advances of defendant; which promissory note is merely a guarantee of the payment unto defendant should he be able to comply with his contractual obligations, copy of the same is herewith attached as Annex "D" hereof,

3. That aside from the aforesaid promissory note defendant still required plaintiff to further cover the said advance with post dated checks of the plaintiff which the latter issued originally with its Metro Bank Davao Account (Magsaysay Branch);

4. That sometime in May 1979, defendant visited plaintiff at their office in General Santos City renewing its promise to deliver very soon the JH-65 Payloader and P50,000 balance of the memo agreement dated January 27, 1979, provided plaintiff in consideration thereof shall renew its checks covering the transaction to enable him to produce the cash needed, to which plaintiff was again deceived by defendant in issuing the following checks in guarantee of the P50,000 first advanced by him

RCBC Main Office Account No. 9366-2

All of which checks are now in the possession of defendant;

5. That defendant had the fullest of know that the performance of payment of plaintiff's aforesaid checks were all dependent upon his compliance of the original contract of January 27, 1979;

6. That the collection of payment made by defendant unto plaintiff is obviously showing of his 'loan shark' mentality of charging a total sum of P20,000 interest charges for a total period of just over four months of maturity date on the P50,000 originally released by him pursuant to the contract in open defiance of usury laws;

EIGHT CAUSE OF ACTION

1. That plaintiff reproduces the allegation of paragraph I of the First Cause of Action as part hereof

2. That by reason further of the continued misrepresentations of defendant for his farther compliance of their original contract subject hereof, sometime in June 1979, defendant renewed his prior checks of guarantee in good faith and issued the following checks amounting to a total of P170,000 in favor of defendant to wit: a) RCBC Check No. 6923586 dated July 2, 1979 for P100,000 and b) RCBC Check No. 6923587 dated July 9, 1979 for ?70,000; which checks are all in the possession of defendant;

3. That the issuance of checks were all premised on the guarantee that defendant shall already comply very soon his promise to deliver the P50,000 cash advance balance subject of the contract and the JH-65 Payloader likewise covered by the same in order for plaintiff to comply with its log commitments to its buyers including defendant himself

4. That defendant however continuously failed to comply with his contractual obligations pursuant to the subject memorandum of agreement for which reason the defendant has no right to enforce collection by virtue of aforesaid checks against plaintiff as by the default of defendant himself as well as misrepresentations and misdelivery of the required units the obligation of plaintiff did not expire under the same contract;

FACTS COMMON TO ALL CAUSES OF ACTION ABOVE-MENTIONED

1. Plaintiff reproduces the allegation in paragraph 1 of the complaint as integral part hereof;

2. That plaintiff is willing to perform its part of the obligation contained in subject memorandum of agreement between plaintiff and defendant dated January 27, 1979 provided full compliance by defendant of his preceding obligations as raised is properly enforced by this Honorable court and provided further that the prices of logs stipulated therein to be sold to defendant shall indispensably be adjusted to conform with the present local current market price;

xxx xxx xxx

MEMORANDUM OF AGREEMENT

A. TO BE PERFORMED BY SANTIAGO MANINGO:

1. To be advanced by SANTIAGO MANINGO to N.Y. LAMIS ENTS./ETCO TIMBER operations:

a) Immediate, upon signing of this memo of agreement......... P 50,000.00

b) To be released one (l) week from date hereof......................... 50,000.00

TOTAL.......... P l00,000.00

2. To be released by SANTIAGO MANINGO to N.Y. LAMIS ENTS./ETCO TIMBER operations:

Value .............................................P 180,000.00

B. TO BE PERFORMED BY NEVILLE Y. LAMIS ENTS. (SCHEDULE OF RE-PAYMENTS):

(Sgd.) SANTIAGO MANINGO

NEVILLE Y. LAMIS ENTS By: (Sgd.) NEVILLE Y. LAMIS Proprietor/Gen. Manager

Davao City, Philippines, January 27, 1979.

(1) THAT THE SUBJECT IS IN 'LIS PENDENS' AND/OR 'MULTIPLICITY OF SUIT' OF A PRIOR AND EXISTING CIVIL CASE NO. 35199 ENTITLED NEVILLE Y. LAMIS ENTS PLAINTIFF VERSUS SANTIAGO MANINGO, DEFENDANT, BEFORE CFI PASIG, BRANCH XXV FILED ON NOVEMBER 16, 1979.

(2) THAT VENUE IN THE HEREIN CASE IS RESPECTFULLY SUBMITTED TO BE IMPROPERLY LAID.