25. Palmares v. CA & M. B.
Lending Corporation, surety as an insurer of the debt, or of a guarantor who warrants the solvency of the
288 SCRA 422
March 31, 1998
TOPIC: Surety
Petitioners: Estrella Palmares
Respondents: Court of Appeals and M.B. Lending Corporation
Ponente: Regalado, J.
Doctrine: A surety is bound equally and absolutely with the principal, and as such is
deemed an original promisor and debtor from the beginning. This is because in
suretyship there is but one contract, and the surety is bound by the same
agreement which binds the principal. In essence, the contract of a surety starts with
the agreement, which is precisely the situation obtaining in this case before the
Court.
FACTS:
 Private respondent M.B. Lending Corporation extended a loan to the
spouses Osmeña and Merlyn Azarraga, together with petitioner Estrella
Palmares, in the amount of P30,000.00 payable on or before May 12,
1990, with compounded interest at the rate of 6% per annum to be
computed every 30 days from the date thereof.
 On four occasions after the execution of the promissory note and even
after the loan matured, petitioner and the Azarraga spouses were able to
pay a total of P16,300.00, thereby leaving a balance of P13,700.00.
 No payments were made after the last payment on September 26, 1991.
Consequently, on the basis of petitioner's solidary liability under the
promissory note, Respondent M.B. Lending Corporation filed a complaint
against petitioner Palmares as the lone party-defendant, to the exclusion
of the principal debtors, allegedly by reason of the insolvency of the
latter.
ISSUES:
(1) Where a party signs a promissory note as a co-maker and binds herself to be
jointly and severally liable with the principal debtor in case the latter defaults in the
payment of the loan, is such undertaking of the former deemed to be that of a
debtor? Or WON Palmares is liable
(2) WON the penalty charge of 3% per month and attorney's fees equivalent to 25%
of the total amount due are highly inequitable and unreasonable
HELD:
(1) YES.
 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.
 A surety is bound equally and absolutely with the principal, and as such is
deemed an original promisor and debtor from the beginning. This is
because in suretyship there is but one contract, and the surety is bound
by the same agreement which binds the principal. In essence, the
contract of a surety starts with the agreement, which is precisely the
situation obtaining in this case before the Court.
 It is a cardinal rule in the interpretation of contracts that if the terms of a
contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulation shall control.
 In the case at bar, petitioner expressly bound herself to be jointly and
severally or solidarily liable with the principal maker of the note. The
terms of the contract are clear, explicit and unequivocal that petitioner's
liability is that of a surety.
(2) YES.
 It must be remembered that from the principal loan of P30,000.00, the
amount of P16,300.00 had already been paid even before the filing of the
present case. Article 1229 of the Civil Code provides that the court shall
equitably reduce the penalty when the principal obligation has been
partly or irregularly complied with by the debtor. And, even if there has
been no performance, the penalty may also be reduced if it is iniquitous
or leonine.
 The grant of attorney's fees equivalent to 25% of the total amount due is,
in our opinion, unreasonable and immoderate, considering the minimal
unpaid amount involved and the extent of the work involved in this
simple action for collection of a sum of money. We, therefore, hold that
the amount of P10,000.00 as and for attorney's fee would be sufficient in
this case.