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[G.R. No. 164327. April 4, 2005]

FRANCO vs. PEOPLE

Third Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated APR 4 2005.

G.R. No. 164327 (Servando Franco vs. People of the Philippines.)��������������

The heirs of petitioner, the late Servando Franco, come to us by way of a motion for reconsideration of our Resolution dated February 9, 2005 which denied the motion to quash filed by petitioner's counsel on November 5, 2004.

The heirs/movants cite as their grounds: (1) the fact that counsel for the petitioner received the notice of the denial of his petition for review on certiorari on October 19, 2004, that is, after his death on October 1, 2004; (2) the death of petitioner before finality of judgment was a valid cause for extinction of his criminal liability under Article 89 of the Revised Penal Code and a valid ground for a motion to quash under Rule 117 of the Rules of Court, and (3) petitioner was not liable under the contract of sale, having merely induced private complainant to sell to his co-defendant Mangahas and not having participated in the contract himself.

We deny the motion for reconsideration.

We will address solely the issue of petitioner's liability under the contract of sale. Contrary to the contention of petitioner's heirs, the late petitioner's civil liability did, in fact, stem from the contract and therefore survived his death. Granting it was petitioner's co-defendant Mangahas who actually issued the checks subject of the criminal case for estafa, petitioner's active participation was indispensable to securing private complainant's consent to the contract of sale.

It was not merely with words of inducement, as the movants claim, that petitioner was able to hoodwink the private complainant. In fact, he promised the private complainant that he would personally pay the amount of the obligation in the event of his co-defendant's default and in doing so, thereby bound himself with her as a surety. This is clear from the factual findings of the trial court, which were affirmed by the Court of Appeals: [1] cralaw

Actually, the private complainant was initially hesitant to accept their offer because she did not know Mangahas personally and the appellant himself could not issue company checks. To convince her, appellant Franco not only introduced Mangahas as his "paaral" and "palaki" (which he later admitted as not true) but he also assured her that the checks of Mangahas were funded. To allay her fears, he also laid his medical stocks in the family-owned Mercury Drug on the line by saying he was willing to surrender them in case the obligation would not be paid. During the negotiation and delivery of the rice, he and Mangahas were always together. Thus, he was also with her when Mangahas picked up several cavans of rice from the Emmanuel Rice Mill owned by Rosalinda Santos-lnducil. When the Manalos complained, the appellant invited them to go with him to FTI in Taguig because he was going to collect the "blue chips" or the payment for the rice he and Mangahas had delivered. When they reached FTI, they were dismayed when a certain Teresita Mangulapnan, a chief of a certain department, informed them that there was no P1.7 million rice deal with FTI and the documents shown by the appellant were all spurious. Even so, the appellant kept telling them not to worry because he would pay the obligation. Despite repeated demands, the appellant failed to pay (emphasis ours).

Article 2047 of the Civil Code provides:

Art. 2047. By guaranty a person, called the guarantor, binds himself to the creditor to fulfil the obligation of the principal debtor in case the latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter 3, Title I of this Book shall be observed. In such case the contract is called a suretyship.

Considering that petitioner made an express commitment to the obligee (the private complainant) to pay the obligation in the event of default, and not merely to the obligor (his co-accused Mangahas) he became a surety liable under the principal contract itself. Even though he did not issue the checks himself, he was nevertheless still liable under the contract as if he had issued them.

A surety assumes liability as a regular party to the undertaking, unlike the guarantor, who is only liable under an independent agreement to pay if the principal obligor fails to do so. The obligation of the surety is primary, while the obligation of the guarantor is secondary. [2] cralaw A surety undertakes to pay if the principal does not pay, while the guarantor only binds himself to pay only if the principal cannot pay. [3] cralaw

In People vs. Bayotas [4] cralaw where we dismissed the appeal upon the death of convicted rapist Rogelio Bayotas, we said:

From this lengthy disquisition, we summarize our ruling herein:

1.������ Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon.As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictore."

2.������ Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission:

a)Law

b)Contracts

c)Quasi-contracts

d)xxx���������� xxx������ xxx

e)Quasi-delicts

3.������ Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above.

4.������ Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription. (Emphasis ours)

WHEREFORE, the motion for reconsideration is hereby DENIED with finality.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court


Endnotes:

[1] cralaw Rollo, pp. 76-77.

[2] cralaw Castelvi de Higgins v. Sellner, 41 Phil. 142 (1920).

[3] cralaw Machetti v. Hospicio de San Jose and Fidelity and Surety Co., 43 Phil. 297 (1922).

[4] cralaw G.R. No. 102007, September 2, 1994, 236 SCRA 239.


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