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MANILA SURETY & FIDELITY CO., INC., vs.

NOEMI ALMEDA

Facts:

Noemi Almeda, doing business under the name and style of Almeda Trading, entered into a contract
with the National Marketing Corporation (NAMARCO) for the purchase of goods on credit, payable in 30
days from the dates of deliveries As required by' the NAMARCO, a bond for P5,000.00, undertaken by
the Manila Surety & Fidelity Co., Inc. was posted by the purchaser to secure the latter's faithful
compliance with the terms of the contract. The agreement was later supplemented and a new bond for
the same amount of P5,000.00, also undertaken by the Manila Surety & Fidelity Co., Inc. was given in
favor of the NAMARCO

The bonds uniformly contained the following provisions:2. Should the Principal's account on any
purchase be not paid on time, then the Surety, shall, upon demand, pay said account immediately to
theNAMARCO;3. Should the account of the Principal exceed the amount of FIVE THOUSAND (P5,000.00)
PESOS, Philippine Currency, such excess up to twenty(20%) per cent of said amount shall also be
deemed secured by this Bond;4. The Surety expressly waives its right to demand payment and notice of
non-payment and agreed that the liability of the Surety shall be direct and immediate and not
contingent upon the exhaustion by the NAMARCO of whatever remedies it may have against the
Principal and same shall be valid and continuous until the obligation so guaranteed is paid in full; and5.
The Surety also waives its right to be notified of any extension of the terms of payment which the
NAMARCO may give to the Principal, it being understood that were extension is given to satisfy the
account, that such extension shall not extinguish the guaranty unless the same is made against the
express wish of the Surety.

The marketing firm demanded from the purchaser Almeda Trading the settlement of its back accounts
which, allegedly amounted to P16,335.09. Furnished with copy of the NAMARCO's demand- letter, the
surety company thereafter also wrote to the said purchaser urging it to liquidate its unsettled accounts
with the NAMARCO however, previous to this, Generoso Esquillo instituted voluntary insolvency
proceeding in the Court of First Instance of Laguna and by order of said court he was declared insolvent.
Manila Surety & Fidelity Co., Inc., commenced in the Court of First Instance of Manila Civil Case against
the spouses Noemi Almeda and Generoso Esquillo, and the NAMARCO, to secure its release from
liability under the bonds executed in favor of NAMARCO. The action was based on the allegation that
the defendant spouses had become insolvent and that defendant NAMARCO had rescinded its
agreement with them and had already demanded payment of the outstanding accounts of the couple.
The court rendered judgment sustaining NAMARCO's contention that the insolvency of the debtor-
principal did not discharge the surety's liability under the bond.

Issue: WON the insolvency of a debtor-principal does not release the surety from its obligation to the
creditor under the bond.

Held: YES

Ratio:
There is no question that under the bonds posted in favor of the NAMARCO in this case, the surety
company assumed to make immediate payment to said firm of any due and unsettled accounts of the
debtor-principal, even without demand and notice of the debtor's non-payment, the surety, in fact,
agreeing that its liability to the creditor shall be direct, without benefit of exhaustion of the debtor's
properties, and to remain valid and continuous until the guaranteed obligation is fully satisfied.
Appellant secured to the creditor not just the payment by the debtor-principal of his accounts, but the
payment itself of such accounts. Clearly, a contract of suretyship was thus created, the appellant
becoming the insurer, not merely of the debtor's solvency or ability to pay, but of the debt itself.The
guarantor's action for release can only be exercised against the principal debtor and not against the
creditor Under the Civil Code, with the debtor's insolvency having been judicially recognized, herein
appellant's resort to the courts to be released from the undertaking thus assumed would have been
appropriate.

Nevertheless, , as is apparent from the precise terms of the legal provision. "The guarantor" (says Article
2071 of the Civil Code of the Philippines) "even before having paid, may proceed against the principal
debtor ------------------ to obtain a release from the guaranty ---------------." The juridical rule grants no
cause of action against the creditor for a release of the guaranty, before payment of the credit, for a
plain reason: the creditor is not compellable to release the guaranty (which is a property right) against
his will. For, the release of the guarantor imports an extinction of his obligation to the creditor; it
connotes, therefore, either a remission or a novation by subrogation, and either operation requires the
creditor's assent for its validity (See Article 1270 and Article 1301). Especially should this be the case
where the principal debtor has become insolvent, for the purpose of a guaranty is exactly to protect the
creditor against such a contingency.

In the case at bar, it is true that the guaranteed claim of NAMARCO was registered or filed in the
insolvency proceeding. But appellant cannot utilize this fact in support of its petition for release from
the assumed undertaking. For one thing, it is almost a certainty that creditor NAMARCO ca not secure
full satisfaction of its credit out of the debtor's properties brought into the insolvency proceeding.
Considering that under the contract of suretyship, which remains valid and subsisting, the entire
obligation may even be demanded directly against the surety itself, the creditor's act in resorting first to
the properties of the insolvent debtor is to the surety's advantage.

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