BALDOMERO INCIONG, JR., petitioner, vs.

COURT OF APPEALS and

PHILIPPINE BANK OF COMMUNICATIONS, respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; PAROL EVIDENCE RULE; DOES NOT SPECIFY
THAT THE WRITTEN AGREEMENT BE A PUBLIC INSTRUMENT.- Clearly, the
rule does not specify that the written agreement be a public document. What is
required is that the agreement be in writing as the rule is in fact founded on "long
experience that written evidence is so much more certain and accurate than that
which rests in fleeting memory only, that it would be unsafe, when parties have
expressed the terms of their contract in writing, to admit weaker evidence to control
and vary the stronger and to show that the parties intended a different contract from
that expressed in the writing signed by them" [FRANCISCO, THE RULES OF
COURT OF THE PHILIPPINES, Vol. VII, Part I, 1990 ed., p. 179] Thus, for the
parol evidence rule to apply, a written contract need not be in any particular form, or
be signed by both parties. As a general rule, bills, notes and other instruments of a
similar nature are not subject to be varied or contradicted by parol or extrinsic
evidence.
2. CIVIL LAW; OBLIGATIONS; SOLIDARY OR JOINT AND SEVERAL OBLIGATION,
DEFINED.- A solidary or joint and several obligation is one in which each debtor is
liable for the entire obligation, and each creditor is entitled to demand the whole
obligation. [TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. IV, 1991 ed., p.
217] Section 4, Chapter 3, Title 1, Book IV of the Civil Code states the law on joint
and several obligations. Under Art. 1207 thereof, when there are two or more
debtors in one and the same obligation, the presumption is that the obligation is
joint so that each of the debtors is liable only for the proportionate part of the
debt. There is a solidary liability only when the obligation expressly so states, when
the law so provides or when the nature of the obligation so requires. [Sesbreo v.
Court of Appeals, G.R. No. 89252, May 24, 1993, 222 SCRA 466, 481.]
3. ID.; GUARANTY; GUARANTOR AS DISTINGUISHED FROM SOLIDARY
DEBTOR.- While a guarantor may bind himself solidarily with the principal debtor,
the liability of a guarantor is different from that of a solidary debtor. Thus, Tolentino
explains: "A guarantor who binds himself in solidum with the principal debtor under
the provisions of the second paragraph does not become a solidary co-debtor to all
intents and purposes. There is a difference between a solidary co-debtor, and a
fiador in solidum (surety). The latter, outside of the liability he assumes to pay the
debt before the property of the principal debtor has been exhausted, retains all the
other rights, actions and benefits which pertain to him by reason of the fiansa; while
a solidary co-debtor has no other rights than those bestowed upon him in Section 4,
Chapter 3, Title 1, Book IV of the Civil Code." [Tolentino, Civil Code of the
Philippines, Vol. V, 1992 ed., p. 502]
APPEARANCES OF COUNSEL
Emilio G. Abrogena for petitioner.
Teogenes X. Velez for private respondent.
D E C I S I O N
ROMERO, J .:
This is a petition for review on certiorari of the decision of the Court of Appeals
affirming that of the Regional Trial Court of Misamis Oriental, Branch 18,
[1]
which
disposed of Civil Case No. 10507 for collection of a sum of money and damages, as
follows:
"WHEREFORE, defendant BALDOMERO L. INCIONG, JR. is adjudged solidarily
liable and ordered to pay to the plaintiff Philippine Bank of Communications,
Cagayan de Oro City, the amount of FIFTY THOUSAND PESOS (P50,000.00),with
interest thereon from May 5, 1983 at 16% per annum until fully paid; and 6% per
annum on the total amount due, as liquidated damages or penalty from May 5, 1983
until fully paid; plus 10% of the total amount due for expenses of litigation and
attorney's fees; and to pay the costs.
The counterclaim, as well as the cross claim, are dismissed for lack of merit.
SO ORDERED."
Petitioner's liability resulted from the promissory note in the amount of P50,000.00
which he signed with Rene C. Naybe and Gregorio D. Pantanosas on February 3, 1983,
holding themselves jointly and severally liable to private respondent Philippine Bank of
Communications, Cagayan de Oro City branch. The promissory note was due on May
5, 1983.
Said due date expired without the promissors having paid their
obligation. Consequently, on November 14, 1983 and on June 8, 1984, private
respondent sent petitioner telegrams demanding payment thereof.
[2]
On December 11,
1984 private respondent also sent by registered mail a final letter of demand to Rene C.
Naybe. Since both obligors did not respond to the demands made, private respondent
filed on January 24, 1986 a complaint for collection of the sum of P50,000.00 against
the three obligors.
On November 25, 1986, the complaint was dismissed for failure of the plaintiff to
prosecute the case. However, on January 9, 1987, the lower court reconsidered the
dismissal order and required the sheriff to serve the summonses. On January 27, 1987,
the lower court dismissed the case against defendant Pantanosas as prayed for by the
private respondent herein. Meanwhile, only the summons addressed to petitioner was
served as the sheriff learned that defendant Naybe had gone to Saudi Arabia.
In his answer, petitioner alleged that sometime in January 1983, he was
approached by his friend, Rudy Campos, who told him that he was a partner of Pio Tio,
the branch manager of private respondent in Cagayan de Oro City, in the falcata logs
operation business. Campos also intimated to him that Rene C. Naybe was interested
in the business and would contribute a chainsaw to the venture. He added that,
although Naybe had no money to buy the equipment Pio Tio had assured Naybe of the
approval of a loan he would make with private respondent. Campos then persuaded
petitioner to act as a "co-maker" in the said loan. Petitioner allegedly acceded but with
the understanding that he would only be a co-maker for the loan of P5,000.00.
Petitioner alleged further that five (5) copies of a blank promissory note were
brought to him by Campos at his office. He affixed his signature thereto but in one
copy, he indicated that he bound himself only for the amount of P5,000.00. Thus, it was
by trickery, fraud and misrepresentation that he was made liable for the amount of
P50,000.00.
In the aforementioned decision of the lower court, it noted that the typewritten figure
"P50,000-" clearly appears directly below the admitted signature of the petitioner in the
promissory note.
[3]
Hence, the latter's uncorroborated testimony on his limited liability
cannot prevail over the presumed regularity and fairness of the transaction, under Sec.
5 (q) of Rule 131. The lower court added that it was "rather odd" for petitioner to have
indicated in a copy and not in the original, of the promissory note, his supposed
obligation in the amount of P5,000.00 only. Finally, the lower court held that even
granting that said limited amount had actually been agreed upon, the same would have
been merely collateral between him and Naybe and, therefore, not binding upon the
private respondent as creditor-bank.
The lower court also noted that petitioner was a holder of a Bachelor of Laws
degree and a labor consultant who was supposed to take due care of his concerns, and
that, on the witness stand, Pio Tio denied having participated in the alleged business
venture although he knew for a fact that the falcata logs operation was encouraged by
the bank for its export potential.
Petitioner appealed the said decision to the Court of Appeals which, in its decision
of August 31, 1990, affirmed that of the lower court. His motion for reconsideration of
the said decision having been denied, he filed the instant petition for review
on certiorari.
On February 6,1991, the Court denied the petition for failure of petitioner to comply
with the Rules of Court and paragraph 2 of Circular No. 1-88, and to sufficiently show
that respondent court had committed any reversible error in its questioned
decision.
[4]
His motion for the reconsideration of the denial of his petition was likewise
denied with finality in the Resolution of April 24, 1991.
[5]
Thereafter, petitioner filed a
motion for leave to file a second motion for reconsideration which, in the Resolution of
May 27, 1991, the Court denied. In the same Resolution, the Court ordered the entry of
judgment in this case.
[6]

Unfazed, petitioner filed a motion for leave to file a motion for clarification. In the
latter motion, he asserted that he had attached Registry Receipt No. 3268 to page 14 of
the petition in compliance with Circular No. 1-88. Thus, on August 7,1991, the Court
granted his prayer that his petition be given due course and reinstated the same.
[7]

Nonetheless, we find the petition unmeritorious.
Annexed to the petition is a copy of an affidavit executed on May 3, 1988, or after
the rendition of the decision of the lower court, by Gregorio Pantanosas, Jr., an MTCC
judge and petitioner's co-maker in the promissory note. It supports petitioner's
allegation that they were induced to sign the promissory note on the belief that it was
only for P5,000.00, adding that it was Campos who caused the amount of the loan to be
increased to P50,000.00.
The affidavit is clearly intended to buttress petitioner's contention in the instant
petition that the Court of Appeals should have declared the promissory note null and
void on the following grounds: (a) the promissory note was signed in the office of Judge
Pantanosas, outside the premises of the bank; (b) the loan was incurred for the purpose
of buying a second-hand chainsaw which cost only P5,000.00; (c) even a new chainsaw
would cost only P27,500.00; (d) the loan was not approved by the board or credit
committee which was the practice, at it exceeded P5,000.00; (e) the loan had no
collateral; (f) petitioner and Judge Pantanosas were not present at the time the loan was
released in contravention of the bank practice, and (g) notices of default are sent
simultaneously and separately but no notice was validly sent to him.
[8]
Finally, petitioner
contends that in signing the promissory note, his consent was vitiated by fraud as,
contrary to their agreement that the loan was only for the amount of P5,000. 00, the
promissory note stated the amount of P50,000.00.
The above-stated points are clearly factual. Petitioner is to be reminded of the
basic rule that this Court is not a trier of facts. Having lost the chance to fully ventilate
his factual claims below, petitioner may no longer be accorded the same opportunity in
the absence of grave abuse of discretion on the part of the court below. Had he
presented Judge Pantanosas' affidavit before the lower court, it would have
strengthened his claim that the promissory note did not reflect the correct amount of the
loan.
Nor is there merit in petitioner's assertion that since the promissory note "is not a
public deed with the formalities prescribed by law but x x x a mere commercial paper
which does not bear the signature of x x x attesting witnesses," parol evidence may
"overcome" the contents of the promissory note.
[9]
The first paragraph of the parol
evidence rule
[10]
states:
"When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and their
successors-in-interest, no evidence of such terms other than the contents of the written
agreement."
Clearly, the rule does not specify that the written agreement be a public document.
What is required is that agreement be in writing as the rule is in fact founded on
"long experience that written evidence is so much more certain and accurate than that
which rests in fleeting memory only, that it would be unsafe, when parties have
expressed the terms of their contract in writing, to admit weaker evidence to control and
vary the stronger and to show that the parties intended a different contract from that
expressed in the writing signed by them."
[11]
Thus, for the parol evidence rule to apply, a
written contract need not be in any particular form, or be signed by both parties.
[12]
As a
general rule, bills, notes and other instruments of a similar nature are not subject to be
varied or contradicted by parol or extrinsic evidence.
[13]

By alleging fraud in his answer,
[14]
petitioner was actually in the right direction
towards proving that he and his co-makers agreed to a loan of P5,000.00 only
considering that, where a parol contemporaneous agreement was the inducing and
moving cause of the written contract, it may be shown by parol evidence.
[15]
However,
fraud must be established by clear and convincing evidence, mere preponderance of
evidence, not even being adequate.
[16]
Petitioner's attempt to prove fraud must,
therefore, fail as it was evidenced only by his own uncorroborated and, expectedly, self-
serving testimony.
Petitioner also argues that the dismissal of the complaint against Naybe, the
principal debtor, and against Pantanosas, his co-maker, constituted a release of his
obligation, especially because the dismissal of the case against Pantanosas was upon
the motion of private respondent itself. He cites as basis for his argument, Article 2080
of the Civil Code which provides that:
"The guarantors, even though they be solidary, are released from their obligation
whenever by some act of the creditor, they cannot be subrogated to the rights,
mortgages, and preferences of the latter."
It is to be noted, however, that petitioner signed the promissory note as a solidary
co-maker and not as a guarantor. This is patent even from the first sentence of the
promissory note which states as follows:
"Ninety one (91) days after date, for value received, I/we, JOINTLY and
SEVERALLY promise to pay to the PHILIPPINE BANK OF COMMUNICATIONS
at its office in the City of Cagayan de Oro, Philippines the sum of FIFTY
THOUSAND ONLY (P50,000. 00) Pesos, Philippine Currency, together with interest
x x x at the rate of SIXTEEN (16) per cent per annum until fully paid."
A solidary or joint and several obligation is one in which each debtor is liable for the
entire obligation, and each creditor is entitled to demand the whole obligation.
[17]
On the
other hand, Article 2047 of the Civil Code states:
"By guaranty a person, called the guarantor, binds himself to the creditor to fulfill 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 a case the contract is
called a suretyship." (Italics supplied.)
While a guarantor may bind himself solidarily with the principal debtor, the liability of a
guarantor is different from that of a solidary debtor. Thus, Tolentino explains:
"A guarantor who binds himself in solidum with the principal debtor under the provisions of the
second paragraph does not become a solidary co-debtor to all intents and purposes. There is a
difference between a solidary co-debtor, and a fiador in solidum (surety). The later, outside of
the liability he assumes to pay the debt before the property of the principal debtor has been
exhausted, retains all the other rights, actions and benefits which pertain to him by reason of
the fiansa; while a solidary co-debtor has no other rights than those bestowed upon him in
Section 4, Chapter 3, title I, Book IV of the Civil Code."
[18]

Section 4, Chapter 3, Title I, Book IV of the Civil Code states the law on joint and
several obligations. Under Art. 1207 thereof, when there are two or more debtors in one
and the same obligation, the presumption is that the obligation is joint so that each of
the debtors is liable only for a proportionate part of the debt. There is a solidarity liability
only when the obligation expressly so states, when the law so provides or when the
nature of the obligation so requires.
[19]

Because the promissory note involved in this case expressly states that the three
signatories therein are jointly and severally liable, any one, some or all of them may be
proceeded against for the entire obligation.
[20]
The choice is left to the solidary creditor
to determine against whom he will enforce collection.
[21]
Consequently, the dismissal of
the case against Judge Pontanosas may not be deemed as having discharged
petitioner from liability as well. As regards Naybe, suffice it to say that the court never
acquired jurisdiction over him. Petitioner, therefore, may only have recourse against his
co-makers, as provided by law.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED and
the questioned decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.