Unformatted text preview: still, by allowing the assigned funds to be exhausted without notifying the surety, the
Bank deprived the former of any possibility of recoursing against that security. The Bank thereby exonerated
the surety, pursuant to Article 2080 of the Civil Code:
ART. 2080. — The guarantors, even though they be solidary, are released from their obligation
whenever by come act of the creditor they cannot be subrogated to the rights, mortgages and preferences of
the latter. (Emphasis supplied.) Art. 1889 – Agent Liable to Principal In Damages Where in Cases of Conflict of Interests, Agent
Preferred His Own
Aboitiz v. De Silva, 45 Phil 883 (1924) LESAVA
Doctrine: Novation is never presumed. Unless it is clearly shown either by express agreement of the parties
or by acts of equivalent import, this defense will never beallowed.
Facts: This action is brought to recover the sum of P159,000, the alleged unpaid balance of the purchase
price of the plaintiff's shares in the partnerships of G. & R. Aboitiz and Viuda e Hijos de P. Aboitiz, sold by
him to the defendants.
Ramon Aboitiz sold his interest in the two partnerships to the defendants. The defendants also required the
interests of the plaintiff’s partners, and on March 26, 1920, the three defendants, together with Manuel
Moraza and Joaquin Irastorza, formed a corporation under the name of Aboitiz & Co., Inc., the defendants
transferring to the corporation the property and goodwill of Viuda e Hijos de P. Aboitiz, and G. & R. Aboitiz.
The defendant De Silva was the general manager of the business of the two partnerships from the time of the
purchase from Ramon Aboitiz and continued as general manager after the incorporation.
Shortly after the sale of his business, Ramon Aboitiz left the Philippines for Spain. He left his brother,
Guillermo Aboitiz, to look after his remaining interest in the business under a power of attorney. Guillermo is 14 said to make the necessary collections and disbursements in connection with these interests wherein a
separate personal account was k...
View Full Document
- Fall '14
- gutierrez hermanos, B.A. Finance Corporation