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Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 85419 March 9, 1993

DEVELOPMENT BANK OF RIZAL, plaintiff-petitioner,
vs.
SIMA WEI and/or LEE KIAN HUAT, MARY CHENG UY, SAMSON TUNG, ASIAN INDUSTRIAL
PLASTIC CORPORATION and PRODUCERS BANK OF THE PHILIPPINES, defendantsrespondents.
Yngson & Associates for petitioner.
Henry A. Reyes & Associates for Samso Tung & Asian Industrial Plastic Corporation.
Eduardo G. Castelo for Sima Wei.
Monsod, Tamargo & Associates for Producers Bank.
Rafael S. Santayana for Mary Cheng Uy.

CAMPOS, JR., J.:

On July 6, 1986, the Development Bank of Rizal (petitioner Bank for brevity) filed a complaint for a
sum of money against respondents Sima Wei and/or Lee Kian Huat, Mary Cheng Uy, Samson Tung,
Asian Industrial Plastic Corporation (Plastic Corporation for short) and the Producers Bank of the
Philippines, on two causes of action:
(1) To enforce payment of the balance of P1,032,450.02 on a promissory note
executed by respondent Sima Wei on June 9, 1983; and
(2) To enforce payment of two checks executed by Sima Wei, payable to petitioner,
and drawn against the China Banking Corporation, to pay the balance due on the
promissory note.
Except for Lee Kian Huat, defendants filed their separate Motions to Dismiss alleging a common
ground that the complaint states no cause of action. The trial court granted the defendants' Motions
to Dismiss. The Court of Appeals affirmed this decision, * to which the petitioner Bank, represented
by its Legal Liquidator, filed this Petition for Review by Certiorari, assigning the following as the
alleged errors of the Court of Appeals: 1
(1) THE COURT OF APPEALS ERRED IN HOLDING THAT THE PLAINTIFFPETITIONER HAS NO CAUSE OF ACTION AGAINST DEFENDANTSRESPONDENTS HEREIN.

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(2) THE COURT OF APPEALS ERRED IN HOLDING THAT SECTION 13, RULE 3
OF THE REVISED RULES OF COURT ON ALTERNATIVE DEFENDANTS IS NOT
APPLICABLE TO HEREIN DEFENDANTS-RESPONDENTS.
The antecedent facts of this case are as follows:
In consideration for a loan extended by petitioner Bank to respondent Sima Wei, the latter executed
and delivered to the former a promissory note, engaging to pay the petitioner Bank or order the
amount of P1,820,000.00 on or before June 24, 1983 with interest at 32% per annum. Sima Wei
made partial payments on the note, leaving a balance of P1,032,450.02. On November 18, 1983,
Sima Wei issued two crossed checks payable to petitioner Bank drawn against China Banking
Corporation, bearing respectively the serial numbers 384934, for the amount of P550,000.00 and
384935, for the amount of P500,000.00. The said checks were allegedly issued in full settlement of
the drawer's account evidenced by the promissory note. These two checks were not delivered to the
petitioner-payee or to any of its authorized representatives. For reasons not shown, these checks
came into the possession of respondent Lee Kian Huat, who deposited the checks without the
petitioner-payee's indorsement (forged or otherwise) to the account of respondent Plastic
Corporation, at the Balintawak branch, Caloocan City, of the Producers Bank. Cheng Uy, Branch
Manager of the Balintawak branch of Producers Bank, relying on the assurance of respondent
Samson Tung, President of Plastic Corporation, that the transaction was legal and regular,
instructed the cashier of Producers Bank to accept the checks for deposit and to credit them to the
account of said Plastic Corporation, inspite of the fact that the checks were crossed and payable to
petitioner Bank and bore no indorsement of the latter. Hence, petitioner filed the complaint as
aforestated.
The main issue before Us is whether petitioner Bank has a cause of action against any or all of the
defendants, in the alternative or otherwise.
A cause of action is defined as an act or omission of one party in violation of the legal right or rights
of another. The essential elements are: (1) legal right of the plaintiff; (2) correlative obligation of the
defendant; and (3) an act or omission of the defendant in violation of said legal right. 2
The normal parties to a check are the drawer, the payee and the drawee bank. Courts have long
recognized the business custom of using printed checks where blanks are provided for the date of
issuance, the name of the payee, the amount payable and the drawer's signature. All the drawer has
to do when he wishes to issue a check is to properly fill up the blanks and sign it. However, the mere
fact that he has done these does not give rise to any liability on his part, until and unless the check is
delivered to the payee or his representative. A negotiable instrument, of which a check is, is not only
a written evidence of a contract right but is also a species of property. Just as a deed to a piece of
land must be delivered in order to convey title to the grantee, so must a negotiable instrument be
delivered to the payee in order to evidence its existence as a binding contract. Section 16 of the
Negotiable Instruments Law, which governs checks, provides in part:
Every contract on a negotiable instrument is incomplete and revocable until delivery
of the instrument for the purpose of giving effect thereto. . . .
Thus, the payee of a negotiable instrument acquires no interest with respect thereto until its delivery
to him. 3Delivery of an instrument means transfer of possession, actual or constructive, from one person
to another. 4 Without the initial delivery of the instrument from the drawer to the payee, there can be no
liability on the instrument. Moreover, such delivery must be intended to give effect to the instrument.

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The allegations of the petitioner in the original complaint show that the two (2) China Bank checks,
numbered 384934 and 384935, were not delivered to the payee, the petitioner herein. Without the
delivery of said checks to petitioner-payee, the former did not acquire any right or interest therein
and cannot therefore assert any cause of action, founded on said checks, whether against the
drawer Sima Wei or against the Producers Bank or any of the other respondents.
In the original complaint, petitioner Bank, as plaintiff, sued respondent Sima Wei on the promissory
note, and the alternative defendants, including Sima Wei, on the two checks. On appeal from the
orders of dismissal of the Regional Trial Court, petitioner Bank alleged that its cause of action was
not based on collecting the sum of money evidenced by the negotiable instruments stated but
on quasi-delict a claim for damages on the ground of fraudulent acts and evident bad faith of the
alternative respondents. This was clearly an attempt by the petitioner Bank to change not only the
theory of its case but the basis of his cause of action. It is well-settled that a party cannot change his
theory on appeal, as this would in effect deprive the other party of his day in court. 5
Notwithstanding the above, it does not necessarily follow that the drawer Sima Wei is freed from
liability to petitioner Bank under the loan evidenced by the promissory note agreed to by her. Her
allegation that she has paid the balance of her loan with the two checks payable to petitioner Bank
has no merit for, as We have earlier explained, these checks were never delivered to petitioner
Bank. And even granting, without admitting, that there was delivery to petitioner Bank, the delivery of
checks in payment of an obligation does not constitute payment unless they are cashed or their
value is impaired through the fault of the creditor. 6 None of these exceptions were alleged by
respondent Sima Wei.

Therefore, unless respondent Sima Wei proves that she has been relieved from liability on the
promissory note by some other cause, petitioner Bank has a right of action against her for the
balance due thereon.
However, insofar as the other respondents are concerned, petitioner Bank has no privity with them.
Since petitioner Bank never received the checks on which it based its action against said
respondents, it never owned them (the checks) nor did it acquire any interest therein. Thus, anything
which the respondents may have done with respect to said checks could not have prejudiced
petitioner Bank. It had no right or interest in the checks which could have been violated by said
respondents. Petitioner Bank has therefore no cause of action against said respondents, in the
alternative or otherwise. If at all, it is Sima Wei, the drawer, who would have a cause of action
against her
co-respondents, if the allegations in the complaint are found to be true.
With respect to the second assignment of error raised by petitioner Bank regarding the applicability
of Section 13, Rule 3 of the Rules of Court, We find it unnecessary to discuss the same in view of
Our finding that the petitioner Bank did not acquire any right or interest in the checks due to lack of
delivery. It therefore has no cause of action against the respondents, in the alternative or otherwise.
In the light of the foregoing, the judgment of the Court of Appeals dismissing the petitioner's
complaint is AFFIRMED insofar as the second cause of action is concerned. On the first cause of
action, the case is REMANDED to the trial court for a trial on the merits, consistent with this
decision, in order to determine whether respondent Sima Wei is liable to the Development Bank of
Rizal for any amount under the promissory note allegedly signed by her.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.

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# Footnotes
* CA G.R. CV No. 11980 dated October 12, 1988. Penned by Associate Justice
Venancio D. Aldecoa, Jr. with Associate Justices Ricardo P. Tensuan and Luis L.
Victor, concurring.
1 Petition, p. 7; Rollo, p. 20.
2 Caseas vs. Rosales, et al., 19 SCRA 462 (1967); Remitere, et al. vs. Vda. de
Yulo, et al., 16 SCRA 251 (1966).
3 In re Martens' Estate, 226 Iowa 162, 283 N.W. 885 (1939); Shriver vs. Danby, 113
A. 612 (1921).
4 Negotiable Instruments Law, Sec. 191, par. 6.
5 Ganzon vs. Court of Appeals, 161 SCRA 646 (1988). See also 1 M. MORAN,
COMMENTS ON THE RULES OF COURT 715 (1957 ed.), citing San Agustin vs.
Barrios, 68 Phil. 475 (1939), Toribio vs. Decasa, 55 Phil. 461 (1930), American
Express Co. vs. Natividad, 46 Phil. 207 (1924), Agoncillo vs. Javier, 38 Phil. 424
(1918).
6 CIVIL CODE, Art. 1249, par. 2.

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Republic of the Philippines
SUPREME COURT
Manila
G.R. Nos. L-25836-37 January 31, 1981
THE PHILIPPINE BANK OF COMMERCE, plaintiff-appellee,
vs.
JOSE M. ARUEGO, defendant-appellant.

FERNANDEZ, J.:
The defendant, Jose M. Aruego, appealed to the Court of Appeals from the order of the Court of
First Instance of Manila, Branch XIII, in Civil Case No. 42066 denying his motion to set aside the
order declaring him in default, 1and from the order of said court in the same case denying his motion to
set aside the judgment rendered after he was declared in default. 2 These two appeals of the defendant
were docketed as CA-G.R. NO. 27734-R and CA-G.R. NO. 27940-R, respectively.

Upon motion of the defendant on July 25, 1960, 3 he was allowed by the Court of Appeals to file one
consolidated record on appeal of CA-G.R. NO. 27734-R and CA-G.R. NO. 27940-R. 4

In a resolution promulgated on March 1, 1966, the Court of Appeals, First Division, certified the
consolidated appeal to the Supreme Court on the ground that only questions of law are involved. 5
On December 1, 1959, the Philippine Bank of Commerce instituted against Jose M. Aruego Civil
Case No. 42066 for the recovery of the total sum of about P35,000.00 with daily interest thereon
from November 17, 1959 until fully paid and commission equivalent to 3/8% for every thirty (30) days
or fraction thereof plus attorney's fees equivalent to 10% of the total amount due and costs. 6 The
complaint filed by the Philippine Bank of Commerce contains twenty-two (22) causes of action referring to
twenty-two (22) transactions entered into by the said Bank and Aruego on different dates covering the
period from August 28, 1950 to March 14, 1951. 7 The sum sought to be recovered represents the cost of
the printing of "World Current Events," a periodical published by the defendant. To facilitate the payment
of the printing the defendant obtained a credit accommodation from the plaintiff. Thus, for every printing of
the "World Current Events," the printer, Encal Press and Photo Engraving, collected the cost of printing by
drawing a draft against the plaintiff, said draft being sent later to the defendant for acceptance. As an
added security for the payment of the amounts advanced to Encal Press and Photo-Engraving, the
plaintiff bank also required defendant Aruego to execute a trust receipt in favor of said bank wherein said
defendant undertook to hold in trust for plaintiff the periodicals and to sell the same with the promise to
turn over to the plaintiff the proceeds of the sale of said publication to answer for the payment of all
obligations arising from the draft. 8

Aruego received a copy of the complaint together with the summons on December 2, 1959. 9 On
December 14, 1959 defendant filed an urgent motion for extension of time to plead, and set the hearing
on December 16, 1959. 10 At the hearing, the court denied defendant's motion for extension. Whereupon,
the defendant filed a motion to dismiss the complaint on December 17, 1959 on the ground that the
complaint states no cause of action because:

a) When the various bills of exchange were presented to the defendant as drawee for acceptance,
the amounts thereof had already been paid by the plaintiff to the drawer (Encal Press and Photo
Engraving), without knowledge or consent of the defendant drawee.

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b) In the case of a bill of exchange, like those involved in the case at bar, the defendant drawee is an
accommodating party only for the drawer (Encal Press and Photo-Engraving) and win be liable in the
event that the accommodating party (drawer) fails to pay its obligation to the plaintiff. 11
The complaint was dismissed in an order dated December 22, 1959, copy of which was received by
the defendant on December 24, 1959. 12
On January 13, 1960, the plaintiff filed a motion for reconsideration. 13 On March 7, 1960, acting upon
the motion for reconsideration filed by the plaintiff, the trial court set aside its order dismissing the
complaint and set the case for hearing on March 15, 1960 at 8:00 in the morning. 14 A copy of the order
setting aside the order of dismissal was received by the defendant on March 11, 1960 at 5:00 o'clock in
the afternoon according to the affidavit of the deputy sheriff of Manila, Mamerto de la Cruz. On the
following day, March 12, 1960, the defendant filed a motion to postpone the trial of the case on the
ground that there having been no answer as yet, the issues had not yet been joined. 15 On the same date,
the defendant filed his answer to the complaint interposing the following defenses: That he signed the
document upon which the plaintiff sues in his capacity as President of the Philippine Education
Foundation; that his liability is only secondary; and that he believed that he was signing only as an
accommodation party. 16

On March 15, 1960, the plaintiff filed an ex parte motion to declare the defendant in default on the
ground that the defendant should have filed his answer on March 11, 1960. He contends that by
filing his answer on March 12, 1960, defendant was one day late. 17 On March 19, 1960 the trial court
declared the defendant in default. 18 The defendant learned of the order declaring him in default on March
21, 1960. On March 22, 1960 the defendant filed a motion to set aside the order of default alleging that
although the order of the court dated March 7, 1960 was received on March 11, 1960 at 5:00 in the
afternoon, it could not have been reasonably expected of the defendant to file his answer on the last day
of the reglementary period, March 11, 1960, within office hours, especially because the order of the court
dated March 7, 1960 was brought to the attention of counsel only in the early hours of March 12, 1960.
The defendant also alleged that he has a good and substantial defense. Attached to the motion are the
affidavits of deputy sheriff Mamerto de la Cruz that he served the order of the court dated March 7, 1960
on March 11, 1960, at 5:00 o'clock in the afternoon and the affidavit of the defendant Aruego that he has
a good and substantial defense. 19 The trial court denied the defendant's motion on March 25, 1960. 20 On
May 6, 1960, the trial court rendered judgment sentencing the defendant to pay to the plaintiff the sum of
P35,444.35 representing the total amount of his obligation to the said plaintiff under the twenty-two (22)
causes of action alleged in the complaint as of November 15, 1957 and the sum of P10,000.00 as
attorney's fees. 21

On May 9, 1960 the defendant filed a notice of appeal from the order dated March 25, 1961 denying
his motion to set aside the order declaring him in default, an appeal bond in the amount of P60.00,
and his record on appeal. The plaintiff filed his opposition to the approval of defendant's record on
appeal on May 13, 1960. The following day, May 14, 1960, the lower court dismissed defendant's
appeal from the order dated March 25, 1960 denying his motion to set aside the order of
default. 22 On May 19, 1960, the defendant filed a motion for reconsideration of the trial court's order
dismissing his appeal. 23 The plaintiff, on May 20, 1960, opposed the defendant's motion for
reconsideration of the order dismissing appeal. 24 On May 21, 1960, the trial court reconsidered its
previous order dismissing the appeal and approved the defendant's record on appeal. 25 On May 30,
1960, the defendant received a copy of a notice from the Clerk of Court dated May 26, 1960, informing
the defendant that the record on appeal filed ed by the defendant was forwarded to the Clerk of Court of
Appeals. 26

On June 1, 1960 Aruego filed a motion to set aside the judgment rendered after he was declared in
default reiterating the same ground previously advanced by him in his motion for relief from the order
of default. 27 Upon opposition of the plaintiff filed on June 3, 1960, 28 the trial court denied the defendant's
motion to set aside the judgment by default in an order of June 11, 1960.

29

On June 20, 1960, the

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defendant filed his notice of appeal from the order of the court denying his motion to set aside the
judgment by default, his appeal bond, and his record on appeal. The defendant's record on appeal was
approved by the trial court on June 25, 1960. 30 Thus, the defendant had two appeals with the Court of
Appeals: (1) Appeal from the order of the lower court denying his motion to set aside the order of default
docketed as CA-G.R. NO. 27734-R; (2) Appeal from the order denying his motion to set aside the
judgment by default docketed as CA-G.R. NO. 27940-R.

In his brief, the defendant-appellant assigned the following errors:

I
THE LOWER COURT ERRED IN HOLDING THAT THE DEFENDANT WAS IN
DEFAULT.
II
THE LOWER COURT ERRED IN ENTERTAINING THE MOTION TO DECLARE
DEFENDANT IN DEFAULT ALTHOUGH AT THE TIME THERE WAS ALREADY ON
FILE AN ANSWER BY HIM WITHOUT FIRST DISPOSING OF SAID ANSWER IN
AN APPROPRIATE ACTION.
III
THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR
RELIEF OF ORDER OF DEFAULT AND FROM JUDGMENT BY DEFAULT
AGAINST DEFENDANT. 31
It has been held that to entitle a party to relief from a judgment taken against him through his
mistake, inadvertence, surprise or excusable neglect, he must show to the court that he has a
meritorious defense. 32 In other words, in order to set aside the order of default, the defendant must not
only show that his failure to answer was due to fraud, accident, mistake or excusable negligence but also
that he has a meritorious defense.

The record discloses that Aruego received a copy of the complaint together with the summons on
December 2, 1960; that on December 17, 1960, the last day for filing his answer, Aruego filed a
motion to dismiss; that on December 22, 1960 the lower court dismissed the complaint; that on
January 23, 1960, the plaintiff filed a motion for reconsideration and on March 7, 1960, acting upon
the motion for reconsideration, the trial court issued an order setting aside the order of dismissal;
that a copy of the order was received by the defendant on March 11, 1960 at 5:00 o'clock in the
afternoon as shown in the affidavit of the deputy sheriff; and that on the following day, March 12,
1960, the defendant filed his answer to the complaint.
The failure then of the defendant to file his answer on the last day for pleading is excusable. The
order setting aside the dismissal of the complaint was received at 5:00 o'clock in the afternoon. It
was therefore impossible for him to have filed his answer on that same day because the courts then
held office only up to 5:00 o'clock in the afternoon. Moreover, the defendant immediately filed his
answer on the following day.
However, while the defendant successfully proved that his failure to answer was due to excusable
negligence, he has failed to show that he has a meritorious defense. The defendant does not have a
good and substantial defense.

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Defendant Aruego's defenses consist of the following:
a) The defendant signed the bills of exchange referred to in the plaintiff's complaint in a
representative capacity, as the then President of the Philippine Education Foundation Company,
publisher of "World Current Events and Decision Law Journal," printed by Encal Press and PhotoEngraving, drawer of the said bills of exchange in favor of the plaintiff bank;
b) The defendant signed these bills of exchange not as principal obligor, but as accommodation or
additional party obligor, to add to the security of said plaintiff bank. The reason for this statement is
that unlike real bills of exchange, where payment of the face value is advanced to the drawer only
upon acceptance of the same by the drawee, in the case in question, payment for the supposed bills
of exchange were made before acceptance; so that in effect, although these documents are labelled
bills of exchange, legally they are not bills of exchange but mere instruments evidencing
indebtedness of the drawee who received the face value thereof, with the defendant as only
additional security of the same. 33
The first defense of the defendant is that he signed the supposed bills of exchange as an agent of
the Philippine Education Foundation Company where he is president. Section 20 of the Negotiable
Instruments Law provides that "Where the instrument contains or a person adds to his signature
words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not
liable on the instrument if he was duly authorized; but the mere addition of words describing him as
an agent or as filing a representative character, without disclosing his principal, does not exempt him
from personal liability."
An inspection of the drafts accepted by the defendant shows that nowhere has he disclosed that he
was signing as a representative of the Philippine Education Foundation Company. 34 He merely
signed as follows: "JOSE ARUEGO (Acceptor) (SGD) JOSE ARGUEGO For failure to disclose his
principal, Aruego is personally liable for the drafts he accepted.

The defendant also contends that he signed the drafts only as an accommodation party and as such,
should be made liable only after a showing that the drawer is incapable of paying. This contention is
also without merit.
An accommodation party is one who has signed the instrument as maker, drawer, indorser, without
receiving value therefor and for the purpose of lending his name to some other person. Such person
is liable on the instrument to a holder for value, notwithstanding such holder, at the time of the taking
of the instrument knew him to be only an accommodation party. 35 In lending his name to the
accommodated party, the accommodation party is in effect a surety for the latter. He lends his name to
enable the accommodated party to obtain credit or to raise money. He receives no part of the
consideration for the instrument but assumes liability to the other parties thereto because he wants to
accommodate another. In the instant case, the defendant signed as a drawee/acceptor. Under the
Negotiable Instrument Law, a drawee is primarily liable. Thus, if the defendant who is a lawyer, he should
not have signed as an acceptor/drawee. In doing so, he became primarily and personally liable for the
drafts.

The defendant also contends that the drafts signed by him were not really bills of exchange but mere
pieces of evidence of indebtedness because payments were made before acceptance. This is also
without merit. Under the Negotiable Instruments Law, a bill of exchange is an unconditional order in
writting addressed by one person to another, signed by the person giving it, requiring the person to
whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in
money to order or to bearer. 36 As long as a commercial paper conforms with the definition of a bill of
exchange, that paper is considered a bill of exchange. The nature of acceptance is important only in the

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determination of the kind of liabilities of the parties involved, but not in the determination of whether a
commercial paper is a bill of exchange or not.

It is evident then that the defendant's appeal can not prosper. To grant the defendant's prayer will
result in a new trial which will serve no purpose and will just waste the time of the courts as well as
of the parties because the defense is nil or ineffective. 37
WHEREFORE, the order appealed from in Civil Case No. 42066 of the Court of First Instance of
Manila denying the petition for relief from the judgment rendered in said case is hereby affirmed,
without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Guerrero and Melencio-Herrera JJ., concur.

Footnotes
1 Record on Appeal, p. 323, Rollo, p. 14 for CA-G.R. NO. 27940 docketed as L25837.
2 Ibid., p. 377.
3 Rollo, p. 5 for CA-G.R. NO. 27940 docketed here as L-25837.
4 Ibid., p. 12.
5 Rollo, pp. 31-36 for CA-G.R. NO. 27754 docketed here as L-25836. The resolution
was written by then Presiding Justice Fred Ruiz Castro and concurred in by Justice
Carmelino Alvendia and Justice Jesus Y. Peres
6 Record on Appeal p. 1.
7 Ibid., pp. 1-56.
8 Ibid.
9 Ibid., p. 241.
10 Ibid., p. 242.
11 Ibid., pp, 243-245.
12 Ibid., pp. 248-249.
13 Ibid., pp. 249-269.
14 Ibid., pp. 274-275.

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15 Ibid., pp. 275-277.
16 Ibid., pp. 302-303.
17 Ibid., pp. 304-307.
18 Ibid., p. 307.
19 Ibid., pp. 308- 314.
20 Ibid., p. 323.
21 Ibid., pp. 327-339.
22 Ibid., pp. 346-347.
23 Ibid., pp. 347-351.
24 Ibid., pp. 352-356.
25 Ibid., p. 357.
26 Ibid., pp. 357-358.
27 Ibid., pp. 358-370,
28 Ibid., pp. 370-377.
29 Ibid., p. 377.
30 Ibid., p. 381.
31 Rollo, p. 19, Brief for the defendant-appellant, pp. 1-2.
32 Bank of Philippine Islands v. de Coster, 47 Phil. 594; The ruling in this case is
substantially the same as Section 3, Rule 18 of the New Rules of Court.
33 Record on Appeal, pp. 316-318, Rollo, p. 14.
34 Ibid., pp. 177-240.
35 Section 29, Negotiable Instruments Law.
36 Section 126, Negotiable Instruments Law.
37 Ferrer vs. Yang Sepeng, 60 SCRA 149.

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Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 116320 November 29, 1999

ADALIA FRANCISCO, petitioner,
vs.
COURT OF APPEALS, HERBY COMMERCIAL & CONSTRUCTION CORPORATION AND JAIME
C. ONG,respondents.

GONZAGA-REYES, J.:
Assailed in this petition for review on certiorari is the decision 1 of the Court of Appeals affirming the
decision 2rendered by Branch 168 of the Regional Trial Court of Pasig in Civil Case No. 35231 in favor of
private respondents.

The controversy before this Court finds its origins in a Land Development and Construction Contract
which was entered into on June 23, 1977 by A. Francisco Realty & Development Corporation
(AFRDC), of which petitioner Adalia Francisco (Francisco) is the president, and private respondent
Herby Commercial & Construction Corporation (HCCC), represented by its President and General
Manager private respondent Jaime C. Ong (Ong), pursuant to a housing project of AFRDC at San
Jose del Monte, Bulacan, financed by the Government Service Insurance System (GSIS). Under the
contract, HCCC agreed to undertake the construction of 35 housing units and the development of 35
hectares of land. The payment of HCCC for its services was on a turn-key basis, that is, HCCC was
to be paid on the basis of the completed houses and developed lands delivered to and accepted by
AFRDC and the GSIS. To facilitate payment, AFRDC executed a Deed of Assignment in favor of
HCCC to enable the latter to collect payments directly from the GSIS. Furthermore, the GSIS and
AFRDC put up an Executive Committee Account with the Insular Bank of Asia & America (IBAA) in
the amount of P4,000,000.00 from which checks would be issued and co-signed by petitioner
Francisco and the GSIS Vice-President Armando Diaz (Diaz).
On February 10, 1978, HCCC filed a complaint 3 with the Regional Trial Court of Quezon City against
Francisco, AFRDC and the GSIS for the collection of the unpaid balance under the Land Development
and Construction Contract in the amount of P515,493.89 for completed and delivered housing units and
land development. However, the parties eventually arrived at an amicable settlement of their differences,
which was embodied in a Memorandum Agreement executed by HCCC and AFRDC on July 21, 1978.
Under the agreement, the parties stipulated that HCCC had turned over 83 housing units which have
been accepted and paid for by the GSIS. The GSIS acknowledged that it still owed HCCC P520,177.50
representing incomplete construction of housing units, incomplete land development and 5% retention,
which amount will be discharged when the defects and deficiencies are finally completed by HCCC. It
was also provided that HCCC was indebted to AFRDC in the amount of P180,234.91 which the former
agreed would be paid out of the proceeds from the 40 housing units still to be turned over by HCCC or
from any amount due to HCCC from the GSIS. Consequently, the trial court dismissed the case upon the
filing by the parties of a joint motion to dismiss.

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Sometime in 1979, after an examination of the records of the GSIS, Ong discovered that Diaz and
Francisco had executed and signed seven checks 4, of various dates and amounts, drawn against the
IBAA and payable to HCCC for completed and delivered work under the contract. Ong, however, claims
that these checks were never delivered to HCCC. Upon inquiry with Diaz, Ong learned that the GSIS
gave Francisco custody of the checks since she promised that she would deliver the same to HCCC.
Instead, Francisco forged the signature of Ong, without his knowledge or consent, at the dorsal portion of
the said checks to make it appear that HCCC had indorsed the checks; Francisco then indorsed the
checks for a second time by signing her name at the back of the checks and deposited the checks in her
IBAA savings account. IBAA credited Francisco's account with the amount of the checks and the latter
withdrew the amount so credited.

On June 7, 1979, Ong filed complaints with the office of the city fiscal of Quezon City, charging
Francisco with estafa thru falsification of commercial documents. Francisco denied having forged
Ong's signature on the checks, claiming that Ong himself indorsed the seven checks in behalf of
HCCC and delivered the same to Francisco in payment of the loans extended by Francisco to
HCCC. According to Francisco, she agreed to grant HCCC the loans in the total amount of
P585,000.00 and covered by eighteen promissory notes in order to obviate the risk of the noncompletion of the project. As a means of repayment, Ong allegedly issued a Certification authorizing
Francisco to collect HCCC's receivables from the GSIS. Assistant City Fiscal Ramon M. Gerona
gave credence to Francisco's claims and accordingly, dismissed the complaints, which dismissal
was affirmed by the Minister of Justice in a resolution issued on June 5, 1981.
The present case was brought by private respondents on November 19, 1979 against Francisco and
IBAA for the recovery of P370,475.00, representing the total value of the seven checks, and for
damages, attorney's fees, expenses of litigation and costs. After trial on the merits, the trial court
rendered its decision in favor of private respondents, the dispositive portion of which provides
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiffs and against the defendants INSULAR BANK OF ASIA & AMERICA and
ATTY. ADALIA FRANCISCO, to jointly and severally pay the plaintiffs the amount of
P370.475.00 plus interest thereon at the rate of 12% per annum from the date of the
filing of the complaint until the full amount is paid; moral damages to plaintiff Jaime
Ong in the sum of P50,000.00; exemplary damages of P50,000.00; litigation
expenses of P5,000.00; and attorney's fees of P50,000.00.
With respect to the cross-claim of the defendant IBAA against its co-defendant Atty.
Adalia Francisco, the latter is ordered to reimburse the former for the sums that the
Bank shall pay to the plaintiff on the forged checks including the interests paid
thereon.
Further, the defendants are ordered to pay the costs.
Based upon the findings of handwriting experts from the National Bureau of Investigation (NBI), the
trial court held that Francisco had indeed forged the signature of Ong to make it appear that he had
indorsed the checks. Also, the court ruled that there were no loans extended, reasoning that it was
unbelievable that HCCC was experiencing financial difficulties so as to compel it to obtain the loans
from AFRDC in view of the fact that the GSIS had issued checks in favor of HCCC at about the
same time that the alleged advances were made. The trial court stated that it was plausible that
Francisco concealed the fact of issuance of the checks from private respondents in order to make it
appear as if she were accommodating private respondents, when in truth she was lending HCCC its
own money.

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With regards to the Memorandum Agreement entered into between AFRDC and HCCC in Civil Case
No. Q-24628, the trial court held that the same did not make any mention of the forged checks since
private respondents were as of yet unaware of their existence, that fact having been effectively
concealed by Francisco, until private respondents acquired knowledge of Francisco's misdeeds in
1979.
IBAA was held liable to private respondents for having honored the checks despite such obvious
irregularities as the lack of initials to validate the alterations made on the check, the absence of the
signature of a co-signatory in the corporate checks of HCCC and the deposit of the checks on a
second indorsement in the savings account of Francisco. However, the trial court allowed IBAA
recourse against Francisco, who was ordered to reimburse the IBAA for any sums it shall have to
pay to private respondents. 5
Both Francisco and IBAA appealed the trial court's decision, but the Court of Appeals dismissed
IBAA's appeal for its failure to file its brief within the 45-day extension granted by the appellate court.
IBAA's motion for reconsideration and petition for review on certiorari filed with this Court were also
similarly denied. On November 21, 1989, IBAA and HCCC entered into a Compromise Agreement
which was approved by the trial court, wherein HCCC acknowledged receipt of the amount of
P370,475.00 in full satisfaction of its claims against IBAA, without prejudice to the right of the latter
to pursue its claims against Francisco.
On June 29, 1992, the Court of Appeals affirmed the trial court's ruling, hence this petition for review
on certiorarifiled by petitioner, assigning the following errors to the appealed decision
1. The respondent Court of Appeals erred in concluding that private
respondents did not owe Petitioner the sum covered by the
Promissory Notes Exh. 2-2-A-2-P (FRANCISCO). Such conclusion
was based mainly on conjectures, surmises and speculation contrary
to the unrebutted pleadings and evidence presented by petitioner.
2. The respondent Court of Appeals erred in holding that Petitioner
falsified the signature of private respondent ONG on the checks in
question without any authority therefor which is patently contradictory
to the unrebutted pleading and evidence that petitioner was expressly
authorized by respondent HERBY thru ONG to collect all receivables
of HERBY from GSIS to pay the loans extended to them. (Exhibit 3).
3. That respondent Court of Appeals erred in holding that the seven
checks in question were not taken up in the liquidation and
reconciliation of all outstanding account between AFRDC and
HERBY as acknowledged by the parties in Memorandum Agreement
(Exh. 5) is a pure conjecture, surmise and speculation contrary to the
unrebutted evidence presented by petitioners. It is an inference made
which is manifestly mistaken.
4. The respondent Court of Appeals erred in affirming the decision of
the lower court and dismissing the appeal. 6
The pivotal issue in this case is whether or not Francisco forged the signature of Ong on the seven
checks. In this connection, we uphold the lower courts' finding that the subject matter of the present
case, specifically the seven checks, drawn by GSIS and AFRDC, dated between October to
November 1977, in the total amount of P370,475.00 and payable to HCCC, was not included in the

14 | N E G O C a s e s S e t # 2 F U L L T E X T
Memorandum Agreement executed by HCCC and AFRDC in Civil Case No. Q-24628. As observed
by the trial court, aside from there being absolutely no mention of the checks in the said agreement,
the amounts represented by said checks could not have been included in the Memorandum
Agreement executed in 1978 because private respondents only discovered Francisco's acts of
forgery in 1979. The lower courts found that Francisco was able to easily conceal from private
respondents even the fact of the issuance of the checks since she was a co-signatory thereof. 7 We
also note that Francisco had custody of the checks, as proven by the check vouchers bearing her
uncontested signature, 8 by which she, in effect, acknowledged having received the checks intended for
HCCC. This contradicts Francisco's claims that the checks were issued to Ong who delivered them to
Francisco already indorsed. 9

As regards the forgery, we concur with the lower courts', finding that Francisco forged the signature
of Ong on the checks to make it appear as if Ong had indorsed said checks and that, after indorsing
the checks for a second time by signing her name at the back of the checks, Francisco deposited
said checks in her savings account with IBAA. The forgery was satisfactorily established in the trial
court upon the strength of the findings of the NBI handwriting expert. 10 Other than petitioner's selfserving denials, there is nothing in the records to rebut the NBI's findings. Well-entrenched is the rule that
findings of trial courts which are factual in nature, especially when affirmed by the Court of Appeals,
deserve to be respected and affirmed by the Supreme Court, provided it is supported by substantial
evidence on record, 11 as it is in the case at bench.

Petitioner claims that she was, in any event, authorized to sign Ong's name on the checks by virtue
of the Certification executed by Ong in her favor giving her the authority to collect all the receivables
of HCCC from the GSIS, including the questioned checks. 12 Petitioner's alternative defense must
similarly fail. The Negotiable Instruments Law provides that where any person is under obligation to
indorse in a representative capacity, he may indorse in such terms as to negative personal liability. 13 An
agent, when so signing, should indicate that he is merely signing in behalf of the principal and must
disclose the name of his principal; otherwise he shall be held personally liable. 14 Even assuming that
Francisco was authorized by HCCC to sign Ong's name, still, Francisco did not indorse the instrument in
accordance with law. Instead of signing Ong's name, Francisco should have signed her own name and
expressly indicated that she was signing as an agent of HCCC. Thus, the Certification cannot be used by
Francisco to validate her act of forgery.

Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify
the latter for the same. 15 Due to her forgery of Ong's signature which enabled her to deposit the checks
in her own account, Francisco deprived HCCC of the money due it from the GSIS pursuant to the Land
Development and Construction Contract. Thus, we affirm respondent court's award of compensatory
damages in the amount of P370,475.00, but with a modification as to the interest rate which shall be six
percent (6%) per annum, to be computed from the date of the filing of the complaint since the amount of
damages was alleged in the complaint; 16 however, the rate of interest shall be twelve percent (12%) per
annumfrom the time the judgment in this case becomes final and executory until its satisfaction and the
basis for the computation of this twelve percent (12%) rate of interest shall be the amount of
P370,475.00. This is in accordance with the doctrine enunciated in Eastern Shipping Lines, Inc. vs. Court
of Appeals, et al., 17 which was reiterated in Philippine National Bank vs. Court of Appeals, 18 Philippine
Airlines, Inc. vs. Court of Appeals 19 and in Keng Hua Paper Products Co., Inc. vs.Court of
Appeals, 20 which provides that

1. When an obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In
the absence of stipulation, the rate of interest shall be 12% per annum to be computed from
default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169
of the Civil Code.

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2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on
the amount of damages awarded may be imposed at the discretion of the court at the rate of six
percent (6%) per annum. No interest, however, shall be adjudged on unliquidated claims or
damages except when or until the demand can be established with reasonable certainty.
Accordingly, where the demand is established with reasonable certainty, the interest shall begin to
run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such
certainty cannot be so reasonably established at the time the demand is made, the interest shall
begin to run only from the date the judgment of the court is made (at which time the quantification of
damages may be deemed to have been reasonably ascertained). The actual base for the
computation of legal interest shall, in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and executory, the rate
of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be twelve
percent (12%) per annum from such finality until its satisfaction, this interim period being deemed to
be by then an equivalent to a forbearance of credit.
We also sustain the award of exemplary damages in the amount of P50,000.00. Under Article 2229
of the Civil Code, exemplary damages are imposed by way of example or correction for the public
good, in addition to the moral, temperate, liquidated or compensatory damages. Considering
petitioner's fraudulent act, we hold that an award of P50,000.00 would be adequate, fair and
reasonable. The grant of exemplary damages justifies the award of attorney's fees in the amount of
P50,000.00, and the award of P5,000.00 for litigation
expenses. 21
The appellate court's award of P50,000.00 in moral damages is warranted. Under Article 2217 of the
Civil Code, moral damages may be granted upon proof of physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury. 22 Ong testitified that he suffered sleepless nights, embarrassment, humiliation and anxiety
upon discovering that the checks due his company were forged by petitioner and that petitioner had filed
baseless criminal complaints against him before the fiscal's office of Quezon City which disrupted HCCC's
business operations. 23

WHEREFORE, we AFFIRM the respondent court's decision promulgated on June 29, 1992,
upholding the February 16, 1988 decision of the trial court in favor of private respondents, with the
modification that the interest upon the actual damages awarded shall be at six percent (6%) per
annum, which interest rate shall be computed from the time of the filing of the complaint on
November 19, 1979. However, the interest rate shall be twelve percent (12%) per annum from the
time the judgment in this case becomes final and executory and until such amount is fully paid. The
basis for computation of the six percent and twelve percent rates of interest shall be the amount of
P370,475.00. No pronouncement as to costs.
SO ORDERED.
Melo, Vitug, Panganiban and Purisima, JJ., concur.
Footnotes
1 The case was docketed as CA-G.R. CV No. 18555 and the decision was promulgated on
June 29, 1992 by the Special Seventeenth Division composed of Cancio C.
Garcia (ponente), Serafin E. Camilon, and Cezar D. Francisco.
2 The decision was penned by Benjamin V. Pelayo and promulgated on February 16, 1988.

16 | N E G O C a s e s S e t # 2 F U L L T E X T
3 Docketed as Civil Case No. Q-24628.
4 1. Check No. 0756055, dated October 20, 1977, for P61,800.00 (Exhibit C).
2. Check No. 0756067, dated October 27, 1977, for P67,100.00 (Exhibit C-1).
3. Check No. 0756061, dated October 25, 1977, for P51,475.00 (Exhibit C-2).
4. Check No. 0756081, dated November 5, 1977, for P32,050.00 (Exhibit C-3).
5. Check No. 0756066, dated October 27, 1977, for P36,250.00 (Exhibit C-4).
6. Check No. 0756062, dated October 25, 1977, for P56,700.00 (Exhibit C-5).
7. Check No. 0756082, dated November 5, 1977, for P65,100.00 (Exhibit C-6).
5 RTC Records, 455-464.
6 Rollo, 19-20.
7 RTC Decision, 7-8; CA Decision, 10.
8 Exhibits E-1 to E-7.
9 Rollo, 29.
10 Exhibits P-1, P-2.
11 Almeda vs. Court of Appeals, 269 SCRA 643 (1997); Fuentes vs. Court of Appeals, 268
SCRA 703 (1997); People vs. Magallano, 266 SCRA 305 (1997).
12 Rollo, 30-33.
13 Act No. 2031, sec. 44.
14 Id., sec. 20. Liability of person signing as agent, and so forth. Where the instrument
contains or a person adds to his signature words indicating that he signs for or on behalf of a
principal or in a representative capacity, he is not liable on the instrument if he was duly
authorized; but the mere addition of words describing him as an agent, or as filling a
representative character, without disclosing his principal, does not exempt him from personal
liability; Philippine Bank of Commerce vs. Aruego, 102 SCRA 530 (1981).
15 Civil Code, art. 20.
16 RTC Records, 5.
17 234 SCRA 78 (1994).
18 263 SCRA 766 (1996).

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19 275 SCRA 621 (1997).
20 286 SCRA 257 (1998).
21 Civil Code, art. 2208 (1); Tan Kapos vs. Masa, 134 SCRA 231 (1985).
22 People vs. Teodoro, 280 SCRA 384 (1997).
23 TSN, November 14, 1980, 51-53; Complaint, 4.