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[G.R. No. 144718. November 15, 2000]

AUTOCORP GROUP vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 15 2000.

G.R. No. 144718 (Autocorp Group v. Court of Appeals and O & O Lumber and Hardware Co., Inc.)

Petitioner assails the appellate court's decision on the ground that it, in effect, allowed the private respondent to change the theory of its case in that in its complaint in the trial court, private respondent asserted that a notice of dishonor of the subject check was sent to petitioner, however, after receiving petitioner's demurrer to evidence, private respondent changed its theory by asserting that although no notice of dishonor was sent to petitioner, it is still liable as no notice of dishonor was necessary under the Negotiable Instruments Law.

The petition is bereft of merit. A perusal of the assailed decision and resolution reveals that it is in accord with law and jurisprudence.

We quote with approval the appellate court's ruling on the matter, thus:

Even assuming that no formal notice of dishonor was given, it (petitioner) is not discharged from liability because the check in question was dishonored by reason of the stop-payment order it gave to the drawee bank. In this regard, Section 114 of the Negotiable Instruments Law (NIL) provides that "Notice of dishonor is not required to be given to the drawer xxx where the drawer has countermanded payment." In fact, Section 89, which deals on notice of dishonor recognizes instances when such notice is not required by providing, "Except as herein otherwise provided." And, precisely, Section 114 enumerates the instances when the notice of dishonor to the drawer is dispensed with.

While the complaint alleges that notice of dishonor was given to petitioner, as the drawer, failure to prove such notice does not relieve it from liability under the check. Having ordered the drawee bank to stop payment, it is not entitled to notice of dishonor under Section 114 of the NIL. Clearly, said allegation is unnecessary as it is not a pre-requisite to an action to enforce petitioner's liability as the drawer of the check in question.

Finding no reversible error in the above-quoted decision of the Court of Appeals, the Court hereby DENIES the instant petition.

Very truly yours,

VIRGINIA ANCHETA-SORIANO

Clerk of Court

(Sgd.) ENRIQUETA ESGUERRA-VIDAL

Asst. Clerk of Court

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