"PACIFIC COMMERCIAL COMPANY
"By (Sgd.) C. H. GOEBEL
"I undertake to make the payment as set out in the foregoing letter.
(Sgd.) "RAF. R. ALUNAN
"Administrator of the Estate
of Rosendo Hernaez"
Rafael Alunan, by signing the agreement, did not assume Hernaez’ admitted debt to the Pacific Commercial Company, and did not substitute Hernaez as the company’s debtor. Alunan simply promised to make the payments to the Pacific Commercial Company as set out in the contract. The letter said, in effect, that there was due Jose Hernaez from the estate of his father the sum of P45,000, and that P20,000 of this could be turned over to the Pacific Commercial Company, and it was to this agreement that Alunan gave his assent. As it turned out that Hernaez did not have any such sum coming to him from the estate of his deceased father, Alunan was not bound to perform something which could not be performed, but was obligated to turn over to the Pacific Commercial Company such part of the assigned debt of Hernaez as came into his possession. The Pacific Commercial Company was entitled to the sum of P7,200 which Alunan, after he had undertaken to apply the funds to the Pacific Commercial Company’s claim against Hernaez, actually handed over to Hernaez.
The three-cornered agreement constituted an assignment.." . . where an agreement is made between a debtor and his creditor that the debt of the latter should be paid out of a fund belonging to the debtor in the hands of a third party, and the agreement is communicated to such third party and is assented to by him, this will be effective in equity to transfer an interest in such fund to the extent of his debt to the creditor." (5 C. J., 915.) The undertaking of Alunan was a promise to be fulfilled.
Alunan gave his conformity to the agreement executed by the Pacific Commercial Company and Hernaez without authority of court. He did not stipulate against personal liability. In failing to pay a claim which it was his duty to pay, he may be sued on his promise in his individual capacity. The fact that Alunan describes himself as administrator does not alter his personal liability. The judgment against him will be de bonis propriis. (24 C. J., 452; 11 R. C. L., 166; Henry v. Velasco , 34 Phil., 587, quoting with approval 18 Cyc., 881, now 24 C. J., 379.)
The facts are in effect as found by the trial court. The only mistake made was in drawing partially wrong conclusions from the facts. Jose Hernaez was primarily liable for P20,000 to the Pacific Commercial Company. He still is. Rafael Alunan was not liable originally to the company, but made himself subsidiarily liable to the extent of P7,200 which, through his fault, was transmitted to Hernaez rather than to the Pacific Commercial Company. Other questions arising from the facts as presented in the memorandum for the appellant do not connect up with the assigned errors, and so need not be discussed.
Based on the facts which are practically all admitted and the law which is as hereinbefore announced, it results that Rafael Alunan has not made himself jointly and severally liable with Jose Hernaez to the Pacific Commercial Company for the payment of P20,000, but that Rafael Alunan has made himself secondarily liable to the Pacific Commercial Company in the amount of P7,200. Accordingly, the judgment appealed from will be modified to the extent indicated, without express pronouncement as to costs in this instance.
Johnson, Villamor, Ostrand, Johns and Romualdez, JJ., concur.