U.S. COMMERCIAL CO., PLAINTIFF AND APPELLEE, VS. MACARIO GUEVARA ET AL., DEFENDANTS, ALBERTO ZAMORA, DEFENDANT-APPELLANT.

In an action instituted by the plaintiff against the defendants,
the Court of first Instance of Davao denied the defendant’s motion
presented one month after the filing of this answer, to be allowed to
file a third-party complaint against one Anastacio Pancho, and rendered
judgment sentencing tls defendants to pay jointly and severally to the
plaintiff the amount stated in the judgment.

Of the four defendants only Alberto Zamora appealed from the lower
court’s judgment, and made the following assignments of error in his
brief: (I) that the lower court erred in denying the motion for the
admission of the third party complaint filed by the defendants against
Anastacio Pancho, and (II) that the lower court erred in sentencing the
defendants to pay jointly and solidarily their obligation to the
plaintiff. The appellee did not file any brief or memorandum in this
appeal.

1. Under Sections 1 and 2, Rule 12, of the Rules of Court,
   whether a party to an action shall be allowed to implead an additional
   party or file a third-party complaint rests in the discretion of the
   court, (Capayas vs. The Court of First Instance of Albay, 43
   Off. Gaz. 2071, 2074; 77 Phil., 181). In the present case, the
   defendants could have properly filed a third»party complaint against
   Anastacio Pancho, who entered into a contract with the defendants
   assuming the letter’s obligation to the plaintiff, although said Pancho
   didnot take part in the execution of the contract on which the
   plaintiff’s claim is based, because a third-party complaint may also be
   based on a transaction other than that on which the plaintiff’s action
   is based, provided it is connected with the plaintiff’s claim (Capayas vs. The Gourt of First Instance of Albay, supra.)
   But in view of the fact admitted or not denied by the defendants,that
   on April 15, 1946, the defendants rescinded said contract entered into
   by them with Anastacio Pancho because the latter has not complied with
   terms thereof, the lower court did not commit any error or abuse its
   discretion in denying the defendants’ motion to file a third-party
   complaint against said Pancho.
2. The defendant-appellant’s
   second assignment of error is well taken. Although, in paragraph 5 of
   the complaint, first cause of action, it is alleged that the defendants
   “assumed jointly and severally not only the assets but also all
   obligations and liabilities incurred and contracted for and in the name
   of the said Fil-American Company,” the defendants in their answer
   denied the fact alleged in said paragraph 4; and in the agreed
   statement of facts (p. 48, Record on Appeal) invited the attention of
   the lower court to the allegation or admission of the plaintiff in
   paragraph 3 first cause of action of the complaint, that the above
   named defendants acting as Board of Directors of said Fil-American.
   Company unanimously approved on March 26, 1946, the following
   resolution:

“Resolved that the Fil-American Company, the
articles of incorporate on of which are as yet not registered in the
Bureau of Commerce and Industry (should, read securities and Exchange
Commission), and as such the said company is and has heretofore been
acting only as an ordinary partnership under the joint responsibility
of the original incorporators, namely, J. V. Vincent, Macario Guevara,
Trilby Guevara, Alberto Zamora, Esteban Geballos, Servando Quidato and
Harry Powers (absent in the U. S.) and Esteban Ceballos (deceased) were
eliminated as such partners for having failed to comply in whole or
part of their obligations to the company, be dissolved as it is hereby
dissolved. * * *”

As the defendants have been acting as an ordinary partnership under
the joint responsibility of the original incorporators of the
Fil-American Company, they are not jointly and severally liableto the
plaintiff (art. 1698, Civil Code).

Wherefore, the lower court’s judgment is reversed in so far as it
sentences the appellant to pay, jointly and severally with the other
defendants, to the plaintiff the sum of P1,192.31 with interest of 6
per cent from the filing of the complaint, plus the sum of P119.23 as
attorneys’ fees and costs, and the appellant is sentenced to pay
jointly or a pro-rata the said amounts to the plaintiff, with costs against the plaintiff-appellee. So ordered.

Moran, C.J., Paras, Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.