Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17076 January 29, 1962
AUGUSTO G. GAMBOA, petitioner,
vs.
THE HON. JUDGE BIENVENIDO A. TAN, in his capacity as Judge of the Court of First Instance of Manila
and AGUSTIN A. CANCIO, respondents.
Dizon and Calma for petitioner.
Ponce Enrile, Siguion Reyna, Montecilla and Belo for respondents..
BENGZON, C.J.:
This involves the effects of consignation..
In April 1960, Augusto G. Gamboa deposited with the Manila court of first instance, the sum of P16,450.00 even as he requested that Agustin A. Cancio be required to take it as full settlement of the latter's share or interest in the enterprise known as Gamboa's Manila, Inc..
Answering the petition (on May 15, 1960), Cancio said he had previously refused to receive the money as full settlement, because his share was worth P51,256.45 at least, and that Gamboa had agreed to pay the said amount for such share. Nevertheless, Cancio expressed willingness to receive, as partial payment, the amount of P16,450.00 thus deposited..
Before Cancio had filed his answer Gamboa changed his mind and on May 6, 1960, he moved for permission to withdraw the sum he had deposited; and the court granted such permission on May 9, 1960..
After filing his answer and knowing the withdrawal, Cancio moved for reconsideration of the order granting such withdrawal, alleging principally that he had not been notified of the motion, and had a right to be heard before it was so granted. The court reversed itself, and ordered Gamboa to re-deposit the amount..
Hence this petition asserting abuse of discretion and plain legal error in view of the specific provision of Art. 1260 of the Civil Code which reads as follows:.1äwphï1.ñët
Art. 1260. ... Before the creditor has accepted the consignation, or before a judicial declaration that the consignation has been properly made, the debtor may withdraw the thing or the sum deposited, allowing the obligation to remain in force.".
We think the above article gives the depositor the right to withdraw the amount deposited at any time before the creditor accepts it (not to speak of the court's order declaring it to be proper). Such right is clear in this case, because the statement of the creditor came late, and, what is more, the acceptance was partial. This last consideration renders it unnecessary to discuss the effect of failure to give the creditor any notice of the withdrawal, since Cancio's statement was practically a rejection of the offer of payment..
WHEREFORE, the order requiring the re-deposit of the money is revoked. Cost against respondent Cancio.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur.
The Lawphil Project - Arellano Law Foundation
