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I.

Contract of sale – Concepts

1458. By the contract of sale, one of the contracting parties obligates himself to transfer the
ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in
money or its equivalent.

A contract of sale may be absolute or conditional

A. Characteristics
1. Consensual – perfected by mere consent without any further act
2. Bilateral – both the cp are bound to fulfill correlative obligations toward each other (seller-
deliver and transfer ownership; buyer-pay the price)
3. Onerous – the thing sold is conveyed in consideration of the price or vice versa
4. Commutative – the thing sold is considered the equivalent of the price paid and vice
versa (however, the contract may be aleatory as in the case of the sale of a hope (lotto)
5. Nominate – it is given a special name or designation in the civil code, namely ‘sale’
6. Principal – it does not depend for its existence and validity upon another contract

B. Essential Requisites of a contract of sale


(Consent or meeting of the minds, Object or subject matter, Cause or consideration)

SECOND DIVISION

G.R. No. L-41847 December 12, 1986

CATALINO LEABRES, petitioner,


vs.
COURT OF APPEALS and MANOTOK REALTY, INC., respondents.

G.R. No. L-41847; 12 December 1986

Paras, J.

CONTRACT OF SALE, CONCEPTS | Essential Requisites of a Contract of Sale

FACTS:

Clara Tambunting de Legarda died testate on 22 April 1950. Among the properties left behind by the
deceased is the “Legarda Tambunting Subdivision.” Shortly after her death, plaintiff Catalino
Leabres bought on a partial payment of P1,000.00 a portion of said Subdivision from surviving
husband Vicente Legarda, who acted as special administrator. The sale was evidenced by a receipt.
In the meantime, Philippine Trust Company took over as administrator and advertised the sale of the
subdivision which includes the lot contested. Manotoc Realty emerged as the successful bidder at
the price of P840,000.00. It must be noted that no adverse claim or interest over the subdivision or
any other portion was ever presented before. Subsequently, a complaint was filed by Leabres which
sought, among others, for quieting of title and continued possession of said lot. He anchored his
claim on the receipt which he contends as evidence of the sale.

ISSUE:
Can the receipt be a basis of a valid sale?

HELD:

No. An examination of the receipt reveals that the same can neither be regarded as a contract of
sale or a promise to sell. There was merely an acknowledgment of the sum of P1,000.00. There was
also no agreement as to the total purchase price of the land nor to the monthly installment to be paid
by the petitioner. The requisites of a valid Contract of Sale namely: 1) consent or meeting of the
minds of the parties; 2) determinate subject matter; and 3) price certain in money or its equivalent —
are lacking in the said receipt and therefore, the “sale” is not valid or enforceable. Assuming that the
receipt could be regarded as sufficient proof, petitioner should have submitted the receipt of the
alleged sale to the Probate Court for approval of transactions given that Don Vicente Legarda
entered into said sale in his own personal capacity without court approval. Consequently, said sale
cannot bind the estate of Clara Tambunting.

The Lawphil Project - Arellano Law Foundation

C. Sale as distinguished from other contracts


1. Barter (NCC 1638,1468)
Art. 1638 By the contract of barter or exchange, one of the parties binds himself to give
one thing in consideration of the other’s promise to give another thing.
Art. 1468 If the consideration of the contract consists partly in money, and partly in
another thing, the transaction shall be characterized by the manifest intention of the
parties. If such intention does not clearly appear, it shall be considered a barter if the
value of the thing given as a part of the consideration exceeds the amount of the money
or its equivalent; otherwise, it is a sale.
2. Donation
3. CONTRACT FOR A PIECE OF WORK NCC 1467

A contract for the delivery at a certain price of an article which the vendor in the ordinary course of
his business manufactures or procures for the general market, whether the same is on hand at the
time or not, is a contract of sale, but if the goods are to be manufactured specially for the customer
and upon his special order, and not for the general market, it is a contract for a piece of work.

G.R. No. L-8506 August 31, 1956

CELESTINO CO & COMPANY, petitioner,


vs.
COLLECTOR OF INTERNAL REVENUE, respondent.

Office of the Solicitor General Ambrosio Padilla, Fisrt Assistant Solicitor General Guillermo E. Torres
and Solicitor Federico V. Sian for respondent.

BENGZON, J.:

Appeal from a decisi on of the Court of Tax Appeals.


Celestino Co & Company is a duly registered general copartnership doing business under the trade
name of "Oriental Sash Factory". From 1946 to 1951 it paid percentage taxes of 7 per cent on the
gross receipts of its sash, door and window factory, in accordance with section one hundred eighty-
six of the National Revenue Code imposing taxes on sale of manufactured articles. However in 1952
it began to claim liability only to the contractor's 3 per cent tax (instead of 7 per cent) under section
191 of the same Code; and having failed to convince the Bureau of Internal Revenue, it brought the
matter to the Court of Tax Appeals, where it also failed. Said the Court:

To support his contention that his client is an ordinary contractor . . . counsel presented . . .
duplicate copies of letters, sketches of doors and windows and price quotations supposedly
sent by the manager of the Oriental Sash Factory to four customers who allegedly made
special orders to doors and window from the said factory. The conclusion that counsel would
like us to deduce from these few exhibits is that the Oriental Sash Factory does not
manufacture ready-made doors, sash and windows for the public but only upon special order
of its select customers. . . . I cannot believe that petitioner company would take, as in fact it
has taken, all the trouble and expense of registering a special trade name for its sash
business and then orders company stationery carrying the bold print "Oriental Sash
Factory (Celestino Co & Company, Prop.) 926 Raon St. Quiapo, Manila, Tel. No.
33076, Manufacturers of all kinds of doors, windows, sashes, furniture, etc. used season-
dried and kiln-dried lumber, of the best quality workmanships" solely for the purpose of
supplying the needs for doors, windows and sash of its special and limited customers. One ill
note that petitioner has chosen for its tradename and has offered itself to the public as a
"Factory", which means it is out to do business, in its chosen lines on a big scale. As a
general rule, sash factories receive orders for doors and windows of special design only in
particular cases but the bulk of their sales is derived from a ready-made doors and windows
of standard sizes for the average home. Moreover, as shown from the investigation of
petitioner's book of accounts, during the period from January 1, 1952 to September 30,
1952, it sold sash, doors and windows worth P188,754.69. I find it difficult to believe that this
amount which runs to six figures was derived by petitioner entirely from its few customers
who made special orders for these items.

Even if we were to believe petitioner's claim that it does not manufacture ready-made sash,
doors and windows for the public and that it makes these articles only special order of its
customers, that does not make it a contractor within the purview of section 191 of the
national Internal Revenue Code. there are no less than fifty occupations enumerated in the
aforesaid section of the national Internal Revenue Code subject to percentage tax and after
reading carefully each and every one of them, we cannot find under which the business of
manufacturing sash, doors and windows upon special order of customers fall under the
category of "road, building, navigation, artesian well, water workers and other construction
work contractors" are those who alter or repair buildings, structures, streets, highways,
sewers, street railways railroads logging roads, electric lines or power lines, and includes any
other work for the construction, altering or repairing for which machinery driven by
mechanical power is used. (Payton vs. City of Anadardo 64 P. 2d 878, 880, 179 Okl. 68).

Having thus eliminated the feasibility off taxing petitioner as a contractor under 191 of the
national Internal Revenue Code, this leaves us to decide the remaining issue whether or not
petitioner could be taxed with lesser strain and more accuracy as seller of its manufactured
articles under section 186 of the same code, as the respondent Collector of Internal Revenue
has in fact been doing the Oriental Sash Factory was established in 1946.

The percentage tax imposed in section 191 of our Tax Code is generally a tax on the sales of
services, in contradiction with the tax imposed in section 186 of the same Code which is a
tax on the original sales of articles by the manufacturer, producer or importer. (Formilleza's
Commentaries and Jurisprudence on the National Internal Revenue Code, Vol. II, p. 744).
The fact that the articles sold are manufactured by the seller does not exchange the contract
from the purview of section 186 of the National Internal Revenue Code as a sale of articles.

There was a strong dissent; but upon careful consideration of the whole matter are inclines to accept
the above statement of the facts and the law. The important thing to remember is that Celestino Co
& Company habitually makes sash, windows and doors, as it has represented in its stationery and
advertisements to the public. That it "manufactures" the same is practically admitted by appellant
itself. The fact that windows and doors are made by it only when customers place their orders, does
not alter the nature of the establishment, for it is obvious that it only accepted such orders as called
for the employment of such material-moulding, frames, panels-as it ordinarily manufactured or was
in a position habitually to manufacture.

Perhaps the following paragraph represents in brief the appellant's position in this Court:

Since the petitioner, by clear proof of facts not disputed by the respondent, manufacturers
sash, windows and doors only for special customers and upon their special orders and in
accordance with the desired specifications of the persons ordering the same and not for the
general market: since the doors ordered by Don Toribio Teodoro & Sons, Inc., for instance,
are not in existence and which never would have existed but for the order of the party
desiring it; and since petitioner's contractual relation with his customers is that of a contract
for a piece of work or since petitioner is engaged in the sale of services, it follows that the
petitioner should be taxed under section 191 of the Tax Code and NOT under section 185 of
the same Code." (Appellant's brief, p. 11-12).

But the argument rests on a false foundation. Any builder or homeowner, with sufficient money, may
order windows or doors of the kind manufactured by this appellant. Therefore it is not true that it
serves special customers only or confines its services to them alone. And anyone who sees, and
likes, the doors ordered by Don Toribio Teodoro & Sons Inc. may purchase from appellant doors of
the same kind, provided he pays the price. Surely, the appellant will not refuse, for it can easily
duplicate or even mass-produce the same doors-it is mechanically equipped to do so.

That the doors and windows must meet desired specifications is neither here nor there. If these
specifications do not happen to be of the kind habitually manufactured by appellant — special forms
for sash, mouldings of panels — it would not accept the order — and no sale is made. If they do, the
transaction would be no different from a purchasers of manufactured goods held is stock for sale;
they are bought because they meet the specifications desired by the purchaser.

Nobody will say that when a sawmill cuts lumber in accordance with the peculiar specifications of a
customer-sizes not previously held in stock for sale to the public-it thereby becomes an employee or
servant of the customer,1 not the seller of lumber. The same consideration applies to this sash
manufacturer.

The Oriental Sash Factory does nothing more than sell the goods that it mass-produces or habitually
makes; sash, panels, mouldings, frames, cutting them to such sizes and combining them in such
forms as its customers may desire.

On the other hand, petitioner's idea of being a contractor doing construction jobs is untenable.
Nobody would regard the doing of two window panels a construction work in common parlance.2
Appellant invokes Article 1467 of the New Civil Code to bolster its contention that in filing orders for
windows and doors according to specifications, it did not sell, but merely contracted for particular
pieces of work or "merely sold its services".

Said article reads as follows:

A contract for the delivery at a certain price of an article which the vendor in the ordinary
course of his business manufactures or procures for the general market, whether the same is
on hand at the time or not, is a contract of sale, but if the goods are to be manufactured
specially for the customer and upon his special order, and not for the general market, it is
contract for a piece of work.

It is at once apparent that the Oriental Sash Factory did not merely sell its services to Don Toribio
Teodoro & Co. (To take one instance) because it also sold the materials. The truth of the matter is
that it sold materials ordinarily manufactured by it — sash, panels, mouldings — to Teodoro & Co.,
although in such form or combination as suited the fancy of the purchaser. Such new form does not
divest the Oriental Sash Factory of its character as manufacturer. Neither does it take the
transaction out of the category of sales under Article 1467 above quoted, because although the
Factory does not, in the ordinary course of its business, manufacture and keep on stock doors of the
kind sold to Teodoro, it could stock and/or probably had in stock the sash, mouldings and panels it
used therefor (some of them at least).

In our opinion when this Factory accepts a job that requires the use of extraordinary or additional
equipment, or involves services not generally performed by it-it thereby contracts for a piece of
work — filing special orders within the meaning of Article 1467. The orders herein exhibited were not
shown to be special. They were merely orders for work — nothing is shown to call them special
requiring extraordinary service of the factory.

The thought occurs to us that if, as alleged-all the work of appellant is only to fill orders previously
made, such orders should not be called special work, but regular work. Would a factory do business
performing only special, extraordinary or peculiar merchandise?

Anyway, supposing for the moment that the transactions were not sales, they were neither lease of
services nor contract jobs by a contractor. But as the doors and windows had been admittedly
"manufactured" by the Oriental Sash Factory, such transactions could be, and should be taxed as
"transfers" thereof under section 186 of the National Revenue Code.

The appealed decision is consequently affirmed. So ordered.

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

G.R. No. 71122 March 25, 1988

COMMISSIONER OF INTERNAL REVENUE, petitioner,


vs.
ARNOLDUS CARPENTRY SHOP, INC. and COURT OF TAX APPEALS, respondents.

CIR vs Arnoldus Carpentry Shop


GR No. 71122
Subject: Sales
Doctrine: Contract of Sale vs Contract for a Piece of Work
Facts: Arnoldus Carpentry Shop, Inc. is a domestic corporation which has been in existence since 1960 which has
for its purpose the “preparing, processing, buying, selling, exporting, importing, manufacturing, trading and dealing
in cabinet shop products, wood and metal home and office furniture, cabinets, doors, windows, etc., including their
component parts and materials, of any and all nature and description”. The company kept samples or models of its
woodwork on display from where its customers may refer to when placing their orders.
On March 1979, the examiners from BIR who conducted an investigation on the company’s tax liabilities reported
that subject corporation should be considered a contractor and not a manufacturer since the corporation renders
service in the course of an independent occupation representing the will of his employer only as to the result of his
work, and not as to the means by which it is accomplished. Hence, in the computation of the percentage tax, the 3%
contractor’s tax should be imposed instead of the 7% manufacturer’s tax. However, responded company holds that
the carpentry shop is a manufacturer and therefore entitled to tax exemption on its gross export sales under Section
202 (e) of the National Internal Revenue Code. CIR rendered its decision classifying the respondent as contractor
which was in turn reversed by the CTA. Hence, this appeal.
Issue: Whether or not the Court of Tax Appeals erred in holding that private respondent is a manufacturer and not a
contractor.

Held: The Supreme Court holds that the private respondent is a “manufacturer” as defined in the Tax Code and not
a “contractor” under Section 205(e) of the Tax Code.
Petitioner CIR wants to impress upon this Court that under Article 1467, the true test of whether or not the contract
is a piece of work (and thus classifying private respondent as a contractor) or a contract of sale (which would
classify private respondent as a manufacturer) is the mere existence of the product at the time of the perfection of the
contract such that if the thing already exists, the contract is of sale, if not, it is work. This is not the test followed in
this jurisdiction. Based on Art. 1467, what determines whether the contract is one of work or of sale is whether the
thing has been manufactured specially for the customer and “upon his special order.” Thus, if the thing is specially
done at the order of another, this is a contract for a piece of work. If, on the other hand, the thing is manufactured or
procured for the general market in the ordinary course of one’s business, it is a contract of sale. The distinction
between a contract of sale and one for work, labor and materials is tested by the inquiry whether the thing
transferred is one not in existence and which never would have existed but for the order of the party desiring to
acquire it, or a thing which would have existed and has been the subject of sale to some other persons even if the
order had not been given. The one who has ready for the sale to the general public finished furniture is a
manufacturer, and the mere fact that he did not have on hand a particular piece or pieces of furniture ordered does
not make him a contractor only.
A contract for the delivery at a certain price of an article which the vendor in the ordinary course of his business
manufactures or procures for the – general market, whether the same is on hand at the time or not, is a contract of
sale, but if the goods are to be manufactured specially for the customer and upon his special order, and not for the
general market, it is a contract for a piece of work. The facts show that the company had a ready stock of its shop
products for sale to its foreign and local buyers. As a matter of fact, the purchase orders from its foreign buyers
showed that they ordered by referring to the models designated by petitioner. Even purchases by local buyers for
television cabinets were by orders for existing models except only for some adjustments in sizes and accessories
utilized.
The Court finds itself in agreement with CTA and as the CTA did not err in holding that private respondent is a
“manufacturer,” then private respondent is entitled to the tax exemption under See. 202 (d) and (e) now Sec. 167 (d)
and (e)] of the Tax Code.
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AGENCY TO SELL –

1466. In constructing a contract containing provisions characteristic of both the contract of sale and
of the contract of agency to sell, the essential clauses of the whole instrument shall be considered

G.R. No. L-11491 August 23, 1918


ANDRES QUIROGA, plaintiff-appellant,
vs.
PARSONS HARDWARE CO., defendant-appellee.

Alfredo Chicote, Jose Arnaiz and Pascual B. Azanza for appellant.


Crossfield & O'Brien for appellee.

AVANCEÑA, J.:

On January 24, 1911, in this city of manila, a contract in the following tenor was entered into by and
between the plaintiff, as party of the first part, and J. Parsons (to whose rights and obligations the
present defendant later subrogated itself), as party of the second part:

CONTRACT EXECUTED BY AND BETWEEN ANDRES QUIROGA AND J.


PARSONS, BOTH MERCHANTS ESTABLISHED IN MANILA, FOR THE
EXCLUSIVE SALE OF "QUIROGA" BEDS IN THE VISAYAN ISLANDS.

ARTICLE 1. Don Andres Quiroga grants the exclusive right to sell his beds in the Visayan
Islands to J. Parsons under the following conditions:

(A) Mr. Quiroga shall furnish beds of his manufacture to Mr. Parsons for the latter's
establishment in Iloilo, and shall invoice them at the same price he has fixed for sales, in
Manila, and, in the invoices, shall make and allowance of a discount of 25 per cent of the
invoiced prices, as commission on the sale; and Mr. Parsons shall order the beds by the
dozen, whether of the same or of different styles.

(B) Mr. Parsons binds himself to pay Mr. Quiroga for the beds received, within a period of
sixty days from the date of their shipment.

(C) The expenses for transportation and shipment shall be borne by M. Quiroga, and the
freight, insurance, and cost of unloading from the vessel at the point where the beds are
received, shall be paid by Mr. Parsons.

(D) If, before an invoice falls due, Mr. Quiroga should request its payment, said payment
when made shall be considered as a prompt payment, and as such a deduction of 2 per cent
shall be made from the amount of the invoice.z

The same discount shall be made on the amount of any invoice which Mr. Parsons may
deem convenient to pay in cash.

(E) Mr. Quiroga binds himself to give notice at least fifteen days before hand of any alteration
in price which he may plan to make in respect to his beds, and agrees that if on the date
when such alteration takes effect he should have any order pending to be served to Mr.
Parsons, such order shall enjoy the advantage of the alteration if the price thereby be
lowered, but shall not be affected by said alteration if the price thereby be increased, for, in
this latter case, Mr. Quiroga assumed the obligation to invoice the beds at the price at which
the order was given.

(F) Mr. Parsons binds himself not to sell any other kind except the "Quiroga" beds.
ART. 2. In compensation for the expenses of advertisement which, for the benefit of both
contracting parties, Mr. Parsons may find himself obliged to make, Mr. Quiroga assumes the
obligation to offer and give the preference to Mr. Parsons in case anyone should apply for
the exclusive agency for any island not comprised with the Visayan group.

ART. 3. Mr. Parsons may sell, or establish branches of his agency for the sale of "Quiroga"
beds in all the towns of the Archipelago where there are no exclusive agents, and shall
immediately report such action to Mr. Quiroga for his approval.

ART. 4. This contract is made for an unlimited period, and may be terminated by either of the
contracting parties on a previous notice of ninety days to the other party.

Of the three causes of action alleged by the plaintiff in his complaint, only two of them constitute the
subject matter of this appeal and both substantially amount to the averment that the defendant
violated the following obligations: not to sell the beds at higher prices than those of the invoices; to
have an open establishment in Iloilo; itself to conduct the agency; to keep the beds on public
exhibition, and to pay for the advertisement expenses for the same; and to order the beds by the
dozen and in no other manner. As may be seen, with the exception of the obligation on the part of
the defendant to order the beds by the dozen and in no other manner, none of the obligations
imputed to the defendant in the two causes of action are expressly set forth in the contract. But the
plaintiff alleged that the defendant was his agent for the sale of his beds in Iloilo, and that said
obligations are implied in a contract of commercial agency. The whole question, therefore, reduced
itself to a determination as to whether the defendant, by reason of the contract hereinbefore
transcribed, was a purchaser or an agent of the plaintiff for the sale of his beds.

In order to classify a contract, due regard must be given to its essential clauses. In the contract in
question, what was essential, as constituting its cause and subject matter, is that the plaintiff was to
furnish the defendant with the beds which the latter might order, at the price stipulated, and that the
defendant was to pay the price in the manner stipulated. The price agreed upon was the one
determined by the plaintiff for the sale of these beds in Manila, with a discount of from 20 to 25 per
cent, according to their class. Payment was to be made at the end of sixty days, or before, at the
plaintiff's request, or in cash, if the defendant so preferred, and in these last two cases an additional
discount was to be allowed for prompt payment. These are precisely the essential features of a
contract of purchase and sale. There was the obligation on the part of the plaintiff to supply the beds,
and, on the part of the defendant, to pay their price. These features exclude the legal conception of
an agency or order to sell whereby the mandatory or agent received the thing to sell it, and does not
pay its price, but delivers to the principal the price he obtains from the sale of the thing to a third
person, and if he does not succeed in selling it, he returns it. By virtue of the contract between the
plaintiff and the defendant, the latter, on receiving the beds, was necessarily obliged to pay their
price within the term fixed, without any other consideration and regardless as to whether he had or
had not sold the beds.

It would be enough to hold, as we do, that the contract by and between the defendant and the
plaintiff is one of purchase and sale, in order to show that it was not one made on the basis of a
commission on sales, as the plaintiff claims it was, for these contracts are incompatible with each
other. But, besides, examining the clauses of this contract, none of them is found that substantially
supports the plaintiff's contention. Not a single one of these clauses necessarily conveys the idea of
an agency. The words commission on sales used in clause (A) of article 1 mean nothing else, as
stated in the contract itself, than a mere discount on the invoice price. The word agency, also used in
articles 2 and 3, only expresses that the defendant was the only one that could sell the plaintiff's
beds in the Visayan Islands. With regard to the remaining clauses, the least that can be said is that
they are not incompatible with the contract of purchase and sale.
The plaintiff calls attention to the testimony of Ernesto Vidal, a former vice-president of the defendant
corporation and who established and managed the latter's business in Iloilo. It appears that this
witness, prior to the time of his testimony, had serious trouble with the defendant, had maintained a
civil suit against it, and had even accused one of its partners, Guillermo Parsons, of falsification. He
testified that it was he who drafted the contract Exhibit A, and, when questioned as to what was his
purpose in contracting with the plaintiff, replied that it was to be an agent for his beds and to collect a
commission on sales. However, according to the defendant's evidence, it was Mariano Lopez
Santos, a director of the corporation, who prepared Exhibit A. But, even supposing that Ernesto
Vidal has stated the truth, his statement as to what was his idea in contracting with the plaintiff is of
no importance, inasmuch as the agreements contained in Exhibit A which he claims to have drafted,
constitute, as we have said, a contract of purchase and sale, and not one of commercial agency.
This only means that Ernesto Vidal was mistaken in his classification of the contract. But it must be
understood that a contract is what the law defines it to be, and not what it is called by the contracting
parties.

The plaintiff also endeavored to prove that the defendant had returned beds that it could not sell;
that, without previous notice, it forwarded to the defendant the beds that it wanted; and that the
defendant received its commission for the beds sold by the plaintiff directly to persons in Iloilo. But
all this, at the most only shows that, on the part of both of them, there was mutual tolerance in the
performance of the contract in disregard of its terms; and it gives no right to have the contract
considered, not as the parties stipulated it, but as they performed it. Only the acts of the contracting
parties, subsequent to, and in connection with, the execution of the contract, must be considered for
the purpose of interpreting the contract, when such interpretation is necessary, but not when, as in
the instant case, its essential agreements are clearly set forth and plainly show that the contract
belongs to a certain kind and not to another. Furthermore, the return made was of certain brass
beds, and was not effected in exchange for the price paid for them, but was for other beds of another
kind; and for the letter Exhibit L-1, requested the plaintiff's prior consent with respect to said beds,
which shows that it was not considered that the defendant had a right, by virtue of the contract, to
make this return. As regards the shipment of beds without previous notice, it is insinuated in the
record that these brass beds were precisely the ones so shipped, and that, for this very reason, the
plaintiff agreed to their return. And with respect to the so-called commissions, we have said that they
merely constituted a discount on the invoice price, and the reason for applying this benefit to the
beds sold directly by the plaintiff to persons in Iloilo was because, as the defendant obligated itself in
the contract to incur the expenses of advertisement of the plaintiff's beds, such sales were to be
considered as a result of that advertisement.

In respect to the defendant's obligation to order by the dozen, the only one expressly imposed by the
contract, the effect of its breach would only entitle the plaintiff to disregard the orders which the
defendant might place under other conditions; but if the plaintiff consents to fill them, he waives his
right and cannot complain for having acted thus at his own free will.

For the foregoing reasons, we are of opinion that the contract by and between the plaintiff and the
defendant was one of purchase and sale, and that the obligations the breach of which is alleged as a
cause of action are not imposed upon the defendant, either by agreement or by law.

The judgment appealed from is affirmed, with costs against the appellant. So ordered.

Arellano, C.J., Torres, Johnson, Street and Malcolm, JJ., concur.

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