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21639
S., 553.)
Error 7, relating to the judgment rendered for the plaintiff. Well
taken in part.
The judgment handed down, it will be remembered, permitted the
plaintiff to recover from the estate the full amount claimed,
presumably on the assumption that Sabert having sold by property to
the Nituan Plantation Company for P40,000, Kiel should have onehalf of the same, or P20,000. There is, however, extant in the record
absolutely no evidence as to the precise amount received by Sabert
from the sale of this particular land. If it is true that Sabert sold all his
land to the Nituan Plantation Company for P40,000, although this fact
was not proven, what part of the P40,000 would correspond to the
property which belonged to Kiel and Sabert under their partnership
agreement? It impresses us further that Kiel under the facts had no
standing in court to ask for any part of the land and in fact he does
not do so; his only legal right is to ask for what is in effect an
accounting with reference to its improvements and income as of 1917
when Sabert became the trustee of the estate on behalf of Kiel.
As we have already intimated, we do not think that Kiel is entitled to
any share in the land itself, but we are of the opinion that he has
clearly shown his right to one-half of the value of the improvements
and personal property on the land as to the date upon which he left
the plantation. Such improvements and personal property include
buildings, coconut palms, and other plantings, cattle and other
animals, implements, fences, and other constructions, as well as
outstanding collectible credits, if any, belonging to the partnership.
The value of these improvements and of the personal property cannot
be ascertained from the record and the case must therefore be
remanded for further proceedings.
In resume, we disregard errors 1, 2, and 3, we find well taken, errors
4 and 7, and we find not well taken, errors 5 and 6.
The judgment appealed from is set aside and the record is returned
to the lower court where the plaintiff, if he so desires, may proceed
further to prove his claim against the estate of P. S. Sabert. Without
costs. So ordered.
November 9, 1903
WILLARD, J.:
By the order of April 16, 1895, Don Ricardo Regidor was expressly
included in the bankruptcy as a general partner of Jurado & Co. No
order setting aside this order has been called to the court's attention,
except the order of December 12, 1898, dismissing the entire
proceeding. The order of April 6, 1898, upon which Seor Regidor
relies, simply decided that this motion, in which he claimed that he
was not properly included in the bankruptcy, should come up for
hearing in the ordinary way. It expressly stated that the merits of said
motion were not passes upon. We have seen nothing in the progress
of this suit to show that this order of April 16, 1895, was not correct.
On the contrary, it appears from the records of the court that, in the
hearing on October 15, 1903, Seor Regidor as one of such partners,
in open court, appointed an attorney to argue for the firm the motion
then before this court.
As a partner of Jurado & Co. he is represented by the firm and has no
right to appear as an individual separate from the firm. If he has this
right, then every partner would have the same right. We see nothing
in the case to indicate that his rights will not be protected by the
lawyers whom the firm may see fit to employ. His motion to be made
a codefendant is denied.
Torres, Cooper, Mapa, McDonough, and Johnson, JJ., concur.
Arellano, C.J., did not sit in this case.
ON SUGGESTION OF DEATH OF LIQUIDATOR OF DEFENDANT
FIRM.
WILLARD, J.:
In this case the plaintiff, in April, 1903, made a motion that the court
assign a day for the hearing of the case. This motion was resubmitted
on the 15th day of October, 1903, and is now us for decision.
The firm Jurado & Co. being in liquidation, Don Basilio Teodoro, said
the defendants to the liquidator, died on July 12, 1903. This fact can
not interfere with the progress of this suit. With the appointment of a
new liquidator the court has nothing to do. The defendants are Jurado
& Co. and not the liquidator. If they do not see fit to appoint a new
liquidator, or to select attorneys in place of those who it said were
appointed only by the deceased liquidator, any notices required to be
served upon the defendants by the plaintiff, or usually given by the
clerk, can be served upon and given to any partner of Jurado & Co,
who may be found in the Islands.
lawphi1.net
issues:
(a) Whether or not the corporate personality of the William J. Suter
"Morcoin" Co., Ltd. should be disregarded for income tax purposes,
considering that respondent William J. Suter and his wife, Julia Spirig
Suter actually formed a single taxable unit; and
(b) Whether or not the partnership was dissolved after the marriage of
the partners, respondent William J. Suter and Julia Spirig Suter and
the subsequent sale to them by the remaining partner, Gustav
Carlson, of his participation of P2,000.00 in the partnership for a
nominal amount of P1.00.
The theory of the petitioner, Commissioner of Internal Revenue, is
that the marriage of Suter and Spirig and their subsequent acquisition
of the interests of remaining partner Carlson in the partnership
dissolved the limited partnership, and if they did not, the fiction of
juridical personality of the partnership should be disregarded for
income tax purposes because the spouses have exclusive ownership
and control of the business; consequently the income tax return of
respondent Suter for the years in question should have included his
and his wife's individual incomes and that of the limited partnership,
in accordance with Section 45 (d) of the National Internal Revenue
Code, which provides as follows:
(d) Husband and wife. In the case of married persons, whether
citizens, residents or non-residents, only one consolidated return for
the taxable year shall be filed by either spouse to cover the income of
both spouses; ....
In refutation of the foregoing, respondent Suter maintains, as the
Court of Tax Appeals held, that his marriage with limited partner
Spirig and their acquisition of Carlson's interests in the partnership in
1948 is not a ground for dissolution of the partnership, either in the
Code of Commerce or in the New Civil Code, and that since its
juridical personality had not been affected and since, as a limited
partnership, as contra distinguished from a duly registered general
partnership, it is taxable on its income similarly with corporations,
Suter was not bound to include in his individual return the income of
the limited partnership.
personality of the individual partners for income tax purposes. But this
rule is exceptional in its disregard of a cardinal tenet of our
partnership laws, and can not be extended by mere implication to
limited partnerships.
The rulings cited by the petitioner (Collector of Internal Revenue vs.
University of the Visayas, L-13554, Resolution of 30 October 1964,
and Koppel [Phil.], Inc. vs. Yatco, 77 Phil. 504) as authority for
disregarding the fiction of legal personality of the corporations
involved therein are not applicable to the present case. In the cited
cases, the corporations were already subject to tax when the fiction of
their corporate personality was pierced; in the present case, to do so
would exempt the limited partnership from income taxation but would
throw the tax burden upon the partners-spouses in their individual
capacities. The corporations, in the cases cited, merely served as
business conduits or alter egos of the stockholders, a factor that
justified a disregard of their corporate personalities for tax purposes.
This is not true in the present case. Here, the limited partnership is
not a mere business conduit of the partner-spouses; it was organized
for legitimate business purposes; it conducted its own dealings with
its customers prior to appellee's marriage, and had been filing its own
income tax returns as such independent entity. The change in its
membership, brought about by the marriage of the partners and their
subsequent acquisition of all interest therein, is no ground for
withdrawing the partnership from the coverage of Section 24 of the
tax code, requiring it to pay income tax. As far as the records show,
the partners did not enter into matrimony and thereafter buy the
interests of the remaining partner with the premeditated scheme or
design to use the partnership as a business conduit to dodge the tax
laws. Regularity, not otherwise, is presumed.
As the limited partnership under consideration is taxable on its
income, to require that income to be included in the individual tax
return of respondent Suter is to overstretch the letter and intent of the
law. In fact, it would even conflict with what it specifically provides in
its Section 24: for the appellant Commissioner's stand results in equal
treatment, tax wise, of a general copartnership (compaia colectiva)
and a limited partnership, when the code plainly differentiates the
two. Thus, the code taxes the latter on its income, but not the former,
because it is in the case of compaias colectivas that the members,
and not the firm, are taxable in their individual capacities for any
dividend or share of the profit derived from the duly registered
general partnership (Section 26, N.I.R.C.; Araas, Anno. & Juris. on
the N.I.R.C., As Amended, Vol. 1, pp. 88-89).
lawphi1.nt
GANCAYCO, J.:
The distinction between co-ownership and an unregistered
partnership or joint venture for income tax purposes is the issue in
this petition.
On June 22, 1965, petitioners bought two (2) parcels of land from
Santiago Bernardino, et al. and on May 28, 1966, they bought
another three (3) parcels of land from Juan Roque. The first two
parcels of land were sold by petitioners in 1968 toMarenir
Development Corporation, while the three parcels of land were sold
by petitioners to Erlinda Reyes and Maria Samson on March 19,1970.
Petitioners realized a net profit in the sale made in 1968 in the
amount of P165,224.70, while they realized a net profit of P60,000.00
in the sale made in 1970. The corresponding capital gains taxes were
paid by petitioners in 1973 and 1974 by availing of the tax amnesties
granted in the said years.
However, in a letter dated March 31, 1979 of then Acting BIR
Commissioner Efren I. Plana, petitioners were assessed and required
to pay a total amount of P107,101.70 as alleged deficiency corporate
income taxes for the years 1968 and 1970.
Petitioners protested the said assessment in a letter of June 26, 1979
asserting that they had availed of tax amnesties way back in 1974.
In a reply of August 22, 1979, respondent Commissioner informed
petitioners that in the years 1968 and 1970, petitioners as co-owners
in the real estate transactions formed an unregistered partnership or
joint venture taxable as a corporation under Section 20(b) and its
income was subject to the taxes prescribed under Section 24, both of
the National Internal Revenue Code 1 that the unregistered partnership
was subject to corporate income tax as distinguished from profits derived
from the partnership by them which is subject to individual income tax; and
that the availment of tax amnesty under P.D. No. 23, as amended, by
petitioners relieved petitioners of their individual income tax liabilities but
did not relieve them from the tax liability of the unregistered partnership.
Hence, the petitioners were required to pay the deficiency income tax
assessed.
Petitioners filed a petition for review with the respondent Court of Tax
Appeals docketed as CTA Case No. 3045. In due course, the
respondent court by a majority decision of March 30, 1987, 2 affirmed
the decision and action taken by respondent commissioner with costs
against petitioners.
the property held in common does not convert their venture into a
partnership. Or the sharing of the gross returns does not of itself
establish a partnership whether or not the persons sharing therein
have a joint or common right or interest in the property. This only
means that, aside from the circumstance of profit, the presence of
other elements constituting partnership is necessary, such as the
clear intent to form a partnership, the existence of a juridical
personality different from that of the individual partners, and the
freedom to transfer or assign any interest in the property by one with
the consent of the others (Padilla, Civil Code of the Philippines
Annotated, Vol. I, 1953 ed., pp. 635-636)
It is evident that an isolated transaction whereby two or more persons
contribute funds to buy certain real estate for profit in the absence of
other circumstances showing a contrary intention cannot be
considered a partnership.
Persons who contribute property or funds for a common enterprise
and agree to share the gross returns of that enterprise in proportion
to their contribution, but who severally retain the title to their
respective contribution, are not thereby rendered partners. They have
no common stock or capital, and no community of interest as
principal proprietors in the business itself which the proceeds derived.
(Elements of the Law of Partnership by Flord D. Mechem 2nd Ed.,
section 83, p. 74.)
A joint purchase of land, by two, does not constitute a co-partnership
in respect thereto; nor does an agreement to share the profits and
losses on the sale of land create a partnership; the parties are only
tenants in common. (Clark vs. Sideway, 142 U.S. 682,12 Ct. 327, 35
L. Ed., 1157.)
Where plaintiff, his brother, and another agreed to become owners of
a single tract of realty, holding as tenants in common, and to divide
the profits of disposing of it, the brother and the other not being
entitled to share in plaintiffs commission, no partnership existed as
between the three parties, whatever their relation may have been as
to third parties. (Magee vs. Magee 123 N.E. 673, 233 Mass. 341.)
In order to constitute a partnership inter sese there must be: (a) An
intent to form the same; (b) generally participating in both profits and
losses; (c) and such a community of interest, as far as third persons
are concerned as enables each party to make contract, manage the
business, and dispose of the whole property.-Municipal Paving Co.
vs. Herring 150 P. 1067, 50 III 470.)
The common ownership of property does not itself create a
partnership between the owners, though they may use it for the
purpose of making gains; and they may, without becoming partners,
agree among themselves as to the management, and use of such
property and the application of the proceeds therefrom. (Spurlock vs.
Wilson, 142 S.W. 363,160 No. App. 14.) 6
The sharing of returns does not in itself establish a partnership
whether or not the persons sharing therein have a joint or common
right or interest in the property. There must be a clear intent to form a
partnership, the existence of a juridical personality different from the
individual partners, and the freedom of each party to transfer or
assign the whole property.
In the present case, there is clear evidence of co-ownership between
the petitioners. There is no adequate basis to support the proposition
that they thereby formed an unregistered partnership. The two
isolated transactions whereby they purchased properties and sold the
same a few years thereafter did not thereby make them partners.
They shared in the gross profits as co- owners and paid their capital
gains taxes on their net profits and availed of the tax amnesty
thereby. Under the circumstances, they cannot be considered to have
formed an unregistered partnership which is thereby liable for
corporate income tax, as the respondent commissioner proposes.
And even assuming for the sake of argument that such unregistered
partnership appears to have been formed, since there is no such
existing unregistered partnership with a distinct personality nor with
assets that can be held liable for said deficiency corporate income
tax, then petitioners can be held individually liable as partners for this
unpaid obligation of the partnership p. 7 However, as petitioners have
availed of the benefits of tax amnesty as individual taxpayers in these
transactions, they are thereby relieved of any further tax liability arising
therefrom.
BARREDO, J.:p
Petition for review of the decision of the Court of Tax Appeals in CTA
Case No. 617, similarly entitled as above, holding that petitioners
have constituted an unregistered partnership and are, therefore,
subject to the payment of the deficiency corporate income taxes
assessed against them by respondent Commissioner of Internal
Revenue for the years 1955 and 1956 in the total sum of P21,891.00,
plus 5% surcharge and 1% monthly interest from December 15,
1958, subject to the provisions of Section 51 (e) (2) of the Internal
Revenue Code, as amended by Section 8 of Republic Act No. 2343
and the costs of the suit, 1 as well as the resolution of said court denying
petitioners' motion for reconsideration of said decision.
The facts are stated in the decision of the Tax Court as follows:
Julia Buales died on March 23, 1944, leaving as heirs her surviving
spouse, Lorenzo T. Oa and her five children. In 1948, Civil Case No.
4519 was instituted in the Court of First Instance of Manila for the
settlement of her estate. Later, Lorenzo T. Oa the surviving spouse
was appointed administrator of the estate of said deceased (Exhibit 3,
pp. 34-41, BIR rec.). On April 14, 1949, the administrator submitted
the project of partition, which was approved by the Court on May 16,
1949 (See Exhibit K). Because three of the heirs, namely Luz,
Virginia and Lorenzo, Jr., all surnamed Oa, were still minors when
the project of partition was approved, Lorenzo T. Oa, their father and
administrator of the estate, filed a petition in Civil Case No. 9637 of
the Court of First Instance of Manila for appointment as guardian of
said minors. On November 14, 1949, the Court appointed him
guardian of the persons and property of the aforenamed minors (See
p. 3, BIR rec.).
The project of partition (Exhibit K; see also pp. 77-70, BIR rec.)
shows that the heirs have undivided one-half (1/2) interest in ten
parcels of land with a total assessed value of P87,860.00, six houses
with a total assessed value of P17,590.00 and an undetermined
amount to be collected from the War Damage Commission. Later,
they received from said Commission the amount of P50,000.00, more
or less. This amount was not divided among them but was used in
the rehabilitation of properties owned by them in common (t.s.n., p.
46). Of the ten parcels of land aforementioned, two were acquired
after the death of the decedent with money borrowed from the
Philippine Trust Company in the amount of P72,173.00 (t.s.n., p. 24;
Exhibit 3, pp. 31-34 BIR rec.).
The project of partition also shows that the estate shares equally with
Lorenzo T. Oa, the administrator thereof, in the obligation of
P94,973.00, consisting of loans contracted by the latter with the
approval of the Court (see p. 3 of Exhibit K; or see p. 74, BIR rec.).
Although the project of partition was approved by the Court on May
16, 1949, no attempt was made to divide the properties therein listed.
Instead, the properties remained under the management of Lorenzo
T. Oa who used said properties in business by leasing or selling
them and investing the income derived therefrom and the proceeds
from the sales thereof in real properties and securities. As a result,
petitioners' properties and investments gradually increased from
Investment
Land
Building
Account
Account
Account
1949
P87,860.00
P17,590.00
1950
P24,657.65
128,566.72
96,076.26
1951
51,301.31
120,349.28
110,605.11
1952
67,927.52
87,065.28
152,674.39
1953
61,258.27
84,925.68
161,463.83
1954
63,623.37
99,001.20
167,962.04
1955
100,786.00
120,249.78
169,262.52
1956
175,028.68
135,714.68
169,262.52
(See Exhibits 3 & K t.s.n., pp. 22, 25-26, 40, 50, 102-104)
From said investments and properties petitioners derived such
incomes as profits from installment sales of subdivided lots, profits
from sales of stocks, dividends, rentals and interests (see p. 3 of
Exhibit 3; p. 32, BIR rec.; t.s.n., pp. 37-38). The said incomes are
recorded in the books of account kept by Lorenzo T. Oa where the
corresponding shares of the petitioners in the net income for the year
are also known. Every year, petitioners returned for income tax
purposes their shares in the net income derived from said properties
V.
ON THE ASSUMPTION THAT THERE WAS AN UNREGISTERED
PARTNERSHIP, THE COURT OF TAX APPEALS ERRED IN NOT
DEDUCTING THE VARIOUS AMOUNTS PAID BY THE
PETITIONERS AS INDIVIDUAL INCOME TAX ON THEIR
RESPECTIVE SHARES OF THE PROFITS ACCRUING FROM THE
PROPERTIES OWNED IN COMMON, FROM THE DEFICIENCY
TAX OF THE UNREGISTERED PARTNERSHIP.
In other words, petitioners pose for our resolution the following
questions: (1) Under the facts found by the Court of Tax Appeals,
should petitioners be considered as co-owners of the properties
inherited by them from the deceased Julia Buales and the profits
derived from transactions involving the same, or, must they be
deemed to have formed an unregistered partnership subject to tax
under Sections 24 and 84(b) of the National Internal Revenue Code?
(2) Assuming they have formed an unregistered partnership, should
this not be only in the sense that they invested as a common fund the
profits earned by the properties owned by them in common and the
loans granted to them upon the security of the said properties, with
the result that as far as their respective shares in the inheritance are
concerned, the total income thereof should be considered as that of
co-owners and not of the unregistered partnership? And (3) assuming
again that they are taxable as an unregistered partnership, should not
the various amounts already paid by them for the same years 1955
and 1956 as individual income taxes on their respective shares of the
profits accruing from the properties they owned in common be
deducted from the deficiency corporate taxes, herein involved,
assessed against such unregistered partnership by the respondent
Commissioner?
Pondering on these questions, the first thing that has struck the Court
is that whereas petitioners' predecessor in interest died way back on
March 23, 1944 and the project of partition of her estate was judicially
approved as early as May 16, 1949, and presumably petitioners have
been holding their respective shares in their inheritance since those
dates admittedly under the administration or management of the head
of the family, the widower and father Lorenzo T. Oa, the assessment
in question refers to the later years 1955 and 1956. We believe this
from the moment petitioners allowed not only the incomes from their
respective shares of the inheritance but even the inherited properties
themselves to be used by Lorenzo T. Oa as a common fund in
undertaking several transactions or in business, with the intention of
deriving profit to be shared by them proportionally, such act was
tantamonut to actually contributing such incomes to a common fund
and, in effect, they thereby formed an unregistered partnership within
the purview of the above-mentioned provisions of the Tax Code.
It is but logical that in cases of inheritance, there should be a period
when the heirs can be considered as co-owners rather than
unregistered co-partners within the contemplation of our corporate tax
laws aforementioned. Before the partition and distribution of the
estate of the deceased, all the income thereof does belong commonly
to all the heirs, obviously, without them becoming thereby
unregistered co-partners, but it does not necessarily follow that such
status as co-owners continues until the inheritance is actually and
physically distributed among the heirs, for it is easily conceivable that
after knowing their respective shares in the partition, they might
decide to continue holding said shares under the common
management of the administrator or executor or of anyone chosen by
them and engage in business on that basis. Withal, if this were to be
allowed, it would be the easiest thing for heirs in any inheritance to
circumvent and render meaningless Sections 24 and 84(b) of the
National Internal Revenue Code.
It is true that in Evangelista vs. Collector, 102 Phil. 140, it was stated,
among the reasons for holding the appellants therein to be
unregistered co-partners for tax purposes, that their common fund
"was not something they found already in existence" and that "it was
not a property inherited by them pro indiviso," but it is certainly far
fetched to argue therefrom, as petitioners are doing here, that ergo, in
all instances where an inheritance is not actually divided, there can
be no unregistered co-partnership. As already indicated, for tax
purposes, the co-ownership of inherited properties is automatically
converted into an unregistered partnership the moment the said
common properties and/or the incomes derived therefrom are used
as a common fund with intent to produce profits for the heirs in
proportion to their respective shares in the inheritance as determined
in a project partition either duly executed in an extrajudicial settlement
proper not to allow any relaxation of the tax laws in favor of persons
who are not exactly above suspicion in their conduct vis-a-vis their
tax obligation to the State.
IN VIEW OF ALL THE FOREGOING, the judgment of the Court of
Tax Appeals appealed from is affirm with costs against petitioners.
September 7, 1929
action. (Borlasa vs. Polistico, 47 Phil., 345.) The case having been
remanded to the court of origin, both parties amend, respectively,
their complaint and their answer, and by agreement of the parties, the
court appointed Amadeo R. Quintos, of the Insular Auditor's Office,
commissioner to examine all the books, documents, and accounts of
"Turnuhan Polistico & Co.," and to receive whatever evidence the
parties might desire to present.
The commissioner rendered his report, which is attached to the
record, with the following resume:
Income:
Member's shares............................
97,263.70
Credits paid................................
6,196.55
Interest received...........................
4,569.45
Miscellaneous...............................
1,891.00
P109,620.7
0
Expenses:
Premiums to members.......................
68,146.25
Loans on real-estate.......................
9,827.00
4,258.55
Salaries....................................
1,095.00
Miscellaneous...............................
1,686.10
85,012.90
Cash on hand........................................
24,607.80
The defendants objected to the commissioner's report, but the trial
court, having examined the reasons for the objection, found the same
sufficiently explained in the report and the evidence, and accepting it,
rendered judgment, holding that the association "Turnuhan Polistico
& Co." is unlawful, and sentencing the defendants jointly and
severally to return the amount of P24,607.80, as well as the
documents showing the uncollected credits of the association, to the
plaintiffs in this case, and to the rest of the members of the said
association represented by said plaintiffs, with costs against the
defendants.
The defendants assigned several errors as grounds for their appeal,
but we believe they can all be reduced to two points, to wit: (1) That
not all persons having an interest in this association are included as
plaintiffs or defendants; (2) that the objection to the commissioner's
report should have been admitted by the court below.
As to the first point, the decision on the case of Borlasa vs. Polistico,
supra, must be followed.
With regard to the second point, despite the praiseworthy efforts of
the attorney of the defendants, we are of opinion that, the trial court
having examined all the evidence touching the grounds for the
objection and having found that they had been explained away in the
commissioner's report, the conclusion reached by the court below,
accepting and adopting the findings of fact contained in said report,
necessary for the said parties to base their action to the existence of
the partnership, but on the fact that of having contributed some
money to the partnership capital. And hence, the charitable institution
of the domicile of the partnership, and in the default thereof, those of
the province are not necessary parties in this case. The article cited
above permits no action for the purpose of obtaining the earnings
made by the unlawful partnership, during its existence as result of the
business in which it was engaged, because for the purpose, as
Manresa remarks, the partner will have to base his action upon the
partnership contract, which is to annul and without legal existence by
reason of its unlawful object; and it is self evident that what does not
exist cannot be a cause of action. Hence, paragraph 2 of the same
article provides that when the dissolution of the unlawful partnership
is decreed, the profits cannot inure to the benefit of the partners, but
must be given to some charitable institution.
We deem in pertinent to quote Manresa's commentaries on article
1666 at length, as a clear explanation of the scope and spirit of the
provision of the Civil Code which we are concerned. Commenting on
said article Manresa, among other things says:
When the subscriptions of the members have been paid to the
management of the partnership, and employed by the latter in
transactions consistent with the purposes of the partnership may the
former demand the return of the reimbursement thereof from the
manager or administrator withholding them?
Apropos of this, it is asserted: If the partnership has no valid
existence, if it is considered juridically non-existent, the contract
entered into can have no legal effect; and in that case, how can it
give rise to an action in favor of the partners to judicially demand from
the manager or the administrator of the partnership capital, each
one's contribution?
The authors discuss this point at great length, but Ricci decides the
matter quite clearly, dispelling all doubts thereon. He holds that the
partner who limits himself to demanding only the amount contributed
by him need not resort to the partnership contract on which to base
his action. And he adds in explanation that the partner makes his
contribution, which passes to the managing partner for the purpose of
Our Code does not state whether, upon the dissolution of the unlawful
partnership, the amounts contributed are to be returned by the
partners, because it only deals with the disposition of the profits; but
the fact that said contributions are not included in the disposal
prescribed profits, shows that in consequences of said exclusion, the
general law must be followed, and hence the partners should
reimburse the amount of their respective contributions. Any other
solution is immoral, and the law will not consent to the latter
remaining in the possession of the manager or administrator who has
refused to return them, by denying to the partners the action to
demand them. (Manresa, Commentaries on the Spanish Civil Code,
vol. XI, pp. 262-264)
The judgment appealed from, being in accordance with law, should
be, as it is hereby, affirmed with costs against the appellants;
provided, however, the defendants shall pay the legal interest on the
sum of P24,607.80 from the date of the decision of the court, and
provided, further, that the defendants shall deposit this sum of money
and other documents evidencing uncollected credits in the office of
the clerk of the trial court, in order that said court may distribute them
among the members of said association, upon being duly identified in
the manner that it may deem proper. So ordered.
WILLARD, J.:
The plaintiff brought this action in the Court of First Instance of Manila
against the partnership of Franciso Muoz & Sons, and against
Francisco Muoz de Bustillo, Emilio Muoz de Bustillo, and Rafael
organized, he would have been in the same condition then that Emilio
Muoz was from the beginning. Such a change would have deprived
him of the salary P2,500, but would not have affected in any way the
partnership nor have produced the effect of relieving him from liability
as a partner. The argument of the appellees seems to be that,
because no yearly or monthly salary was assigned to Emilio Muoz,
he contributed nothing to the partnership and received nothing from it.
By the articles themselves he was to receive at the end of five years
one-eighth of the profits. It can not be said, therefore, that he
received nothing from the partnership. The fact that the receipt of this
money was postponed for five years is not important. If the contention
of the appellees were sound, it would result that, where the articles of
partnership provided for a distribution of profits at the end of each
year, but did not assign any specific salary to an industrial partner
during that time, he would not be a member of the partnership.
Industrial partners, by signing the articles, agree to contribute their
work to the partnership and article 138 of the Code of Commerce
prohibits them from engaging in other work except by the express
consent of the partnership. With reference to civil partnerships,
section 1683 of the Civil Code relates to the same manner.
It is also said in the brief of the appellees that Emilio Muoz was
entirely excluded from the management of the business. It rather
should be said that he excluded himself from such management, for
he signed the articles of partnership by the terms of which the
management was expressly conferred by him and the others upon
the persons therein named. That partners in their articles can do this,
admits of no doubt. Article 125 of the Code of Commerce requires
them to state the partners to whom the management is intrusted. This
right is recognized also in article 132. In the case of Reyes vs. The
Compania Maritima (3 Phil. Rep., 519) the articles of association
provided that the directors for the first eight years should be certain
persons named therein. This court not only held that such provision
was valid but also held that those directors could not be removed
from office during the eight years, even by a majority vote of all the
stockholders of the company.
Emilio Muoz was, therefore, a general partner, and the important
question in the case is whether, as such general partner, he is liable
to third persons for the obligations contracted by the partnership, or
partnership?
In limited partnership the Code of Commerce recognizes a difference
between general and special partners, but in a general partnership
there is no such distinction-- all the members are general partners.
The fact that some may be industrial and some capitalist partners
does not make the members of either of these classes alone such
general partners. There is nothing in the code which says that the
industrial partners shall be the only general partners, nor is there
anything which says that the capitalist partners shall be the only
general partners.
Article 127 of the Code of Commerce is as follows:
All the members of the general copartnership, be they or be they not
managing partners of the same, are liable personally and in solidum
with all their property for the results of the transactions made in the
name and for the account of the partnership, under the signature of
the latter, and by a person authorized to make use thereof.
Do the words "all the partners" found in this article include industrial
partners? The same expression is found in other articles of the code.
In article 129 it is said that, if the management of the partnership has
not been limited by special act to one of the partners, all shall have
the right to participate in the management. Does this mean that the
capitalist partners are the only ones who have that right, or does it
include also industrial partners? Article 132 provides that, when in the
articles of partnership the management has been intrusted to a
particular person, he can not be deprived of such management, but
that in certain cases the remaining partners may appoint a
comanager. Does the phrase "remaining partners" include industrial
partners, or is it limited to capitalist partners, and do industrial
partners have no right to participate in the selection of the
comanager? Article 133 provides that all the partners shall have the
right to examine the books of the partnership. Under this article are
the capitalist partners the only ones who have such right? Article 135
provides that the partners can not use the firm name in their private
business. Does this limitation apply only to capitalist partners or does
it extend also to industrial partners? Article 222 provides that a
general partnership shall be dissolve by the death of one of the
that each one of the industrial partners is liable to third persons for
the debts of the firm; that if he has paid such debts out of his private
property during the life of the partnership, when its affairs are settled
he is entitled to credit for the amount so paid, and if it results that
there is not enough property in the partnership to pay him, then the
capitalist partners must pay him. In this particular case that view is
strengthened by the provisions of article 12, above quoted. There it is
stated that if, when the affairs of the partnership are liquidated that
is, at the end of five years it turns out that there had been losses
instead of gains, then the capitalist partner, Francisco Muoz, shall
pay such losses that is, pay them to the industrial partners if they
have been compelled to disburse their own money in payment of the
debts of the partnership.
While this is a commercial partnership and must be governed
therefore by the rules of the Code of Commerce, yet an examination
of the provisions of the Civil Code in reference to partnerships may
throw some light upon the question here to be resolved. Articles 1689
and 1691 contain, in substance, the provisions of articles 140 and
141 of the Code of Commerce. It is to be noticed that these articles
are found in section 1 of Chapter II [Title VIII] of Book IV. That section
treats of the obligations of the partners between themselves. The
liability of the partners as to third persons is treated in a distinct
section, namely, section 2, comprising articles from 1697 to 1699.
If industrial partners in commercial partnerships are not responsible
to third persons for the debts of the firm, then industrial partners in
civil partnerships are not. Waiving the question as to whether there
can be a commercial partnership composed entirely of industrial
partners, it seems clear that there can be such civil partnership, for
article 1678 of the Civil Code provides as follows:
A particular partnership has for its object specified things only, their
use of profits, or a specified undertaking, or the exercise of a
profession or art.
It might very easily happen, therefor, that a civil partnership could be
composed entirely of industrial partners. If it were, according to the
claim of the appellees, there would be no personal responsibility
whatever for the debts of the partnership. Creditors could rely only
upon the property which the partnership had, which in the case of a
partnership organized for the practice of any art or profession would
be practically nothing. In the case of Agustin vs. Inocencio, 1 just
decided by this court, it was alleged in the complaint, and
admitted by the answer
That is partnership has been formed without articles of association or
capital other than the personal work of each one of the partners,
whose profits are to be equally divided among themselves.
Article 1675 of the Civil Code is as follows:
General partnership of profits include all that the partners may
acquire by their by their industry or work during the continuation of
the partnership.
Personal or real property which each of the partners may possess at
the time of the celebration of the agreement shall continue to be their
private property, the usufruct only passing to the partnership.
It might very well happen in partnership of this kind that no one of the
partners would have any private property and that if they did the
usufruct thereof would be inconsiderable.
Having in mind these different cases which may arise in the practice,
that construction of the law should be avoided which would enable
two persons, each with a large amount of private property, to form
and carry on a partnership and, upon the bankruptcy of the latter, to
say to its creditors that they contributed no capital to the company but
only their services, and that their private property is not, therefore,
liable for its debts.
But little light is thrown upon this question by the authorities. No
judgment of the supreme court of Spain has been called to our
attention, and we have been able to find none which refers in any
way to this question. There is, therefore, no authority from the tribunal
for saying that an industrial partner is not liable to third persons for
the debts of the partnership.
In a work published by Lorenzo Benito in 1889 (Lecciones de
derecho mercantil) it is said that industrial partners are not liable for
lawphil.net
The only defect that can be pointed out in this article is the fact that it
has been forgotten that in collective partnerships there are industrial
partners who, not being jointly liable for the obligations of the
copartnership, should not include their names in that of the firm. (p.
129.)
As a logical result of his theory he says that an industrial partner has
no right to participate in the administration of the partnership and that
his name can not appear in the firm name. In this last respect his
view is opposed to that of Manresa, who says (Commentaries on the
Spanish Civil Code, vol. 11, p. 330):
It only remains to us to state that a partner who contributes his
industry to the concern can also confer upon it the name or the
corporate name under which such industry should be carried on. In
this case, so long as the copartnership lasts, it can enjoy the credit,
reputation, and name or corporate name under which such industry is
examination of the French law will also show that no distinction of that
kind is therein anywhere made and nothing can be found therein
which indicates that the industrial partners are not liable for the debts
of the partnership. (Fuzier-Herman, Repertoire de Droit Francais, vol.
34, pp. 256, 361, 510, and 512.)
Our conclusion is upon this branch of the case that neither on
principle nor on authority can the industrial partner be relieved from
liability to third persons for the debts of the partnership.
It is apparently claimed by the appellee in his brief that one action can
not be maintained against the partnership and the individual partners,
this claim being based upon the provisions of article 237 of the Code
of Commerce which provides that the private property of the partners
shall not be taken until the partnership property has been exhausted.
But this article furnishes to argument in support of the appellee's
claim. An action can be maintained against the partnership and
partners, but the judgment should recognize the rights of the
individual partners which are secured by said article 237.
lawphil.net
Separate Opinions
ARELLANO, C. J., dissenting:
having contributed anything which the company may lose when the
losses of the copartnership are considered, either among the partners
thereof or with regard to third persons.
There need be no distinction made between obligations and losses.
During the existence of a company the gains or the losses are set off
the one against the other, and the difference is either in favor of or
against the concern. As to the industrial partner, in connection with
the question submitted, it is not a matter of striking a balance from
time to time, but one of the final adjustment of assets and liabilities,
because the matter under discussion refers only to his private
property, which has nothing to do with the company nor with losses in
liquidating the same. Article 127 is affected by article 237: "The
private property of the general partners which is not included in the
assets of the copartnership when it is established can not be seized
for the payment of the obligations contracted by the copartnership
until after the common assets have been attached." And such
condition is stated in the majority decision. As long as there is
property belonging to the company, obligations in favor of third
persons are covered by the primary and direct responsibility of the
company; the question arises when the assets of the company are
exhausted and it becomes necessary to appeal to the ulterior or
subsidiary liability of the private property of the partners; in this case
such obligations constitute the extreme losses in the liquidation of the
company.
The case at bar could only thus be set forth: Should an industrial
partner be responsible for such losses, for such obligations in favor of
third persons? Article 141 expressly states that he shall not. In order
to state the contrary it would be necessary to appeal to
discriminations in the wording of said article; and this is neither
permitted where the law does not make them nor would they lead to
anything after all. In the aforesaid article 237 the corroboration of the
word all of article 127 may be found: "The private property of the
general partners which is not included in the assets of the
copartnership," differing from such as were included, can not seized
for the payment of obligations contracted by the copartnership, until
after the common assets have been attached; after such attachment
all the assets, according to article 127, such as were included, and
those that were not included, in this order, shall be subject to the
And it would not suffice to say that the above article of the code of the
Argentine Republic, namely, "on collective copartnership," involves no
section which may refer to industrial partners, and that, therefore,
there can be no question as to the words "all the members;" it is
because, by reason of the nature thereof, whether under one system
or another, the provisions and the principles being identical, the
conclusions can not otherwise than identical. In a copartnership, and
as the result of the obligations thereunder, an industrial partner can
not lose except what he has actually contributed thereto for a limited
or an unlimited purpose, subject ultimately to company or personal
obligations; this is all that law and logic may demand of him; anything
else would not come under the law, but may be demanded of him by
reason of his express covenant, because he has consented to
something beyond the character and the effects of the contract of
partnership of capital and industry entered into by him, called
collective; nothing else has been the subject of his consent and
obligation.
Manuel Duran y Bas, a former professor of the University of
Barcelona, in his addition to the work of Marti de Eixala, which is so
generally and specially consulted in that eminently commercial and
industrial city, has offered no remarks to the original text of said work
which establish as an elemental doctrine that "When the
copartnership is purely a collective one, each of its members is jointly
obligated for the result of the transactions which should be charged to
the copartnership . . . . From the general rule which we have just set
up the industrial partners who contract no obligation to secure the
liabilities of the company should be excepted, unless there be an
express covenant to the contrary." (Art. 319 of the code of 1829,
identical with art. 141 of the code now in force.)
During almost half a century no obligation has been raised by the
professors of law, the press, or the bar, to this doctrine regarding the
exemption, not merely with respect to losses but to company
obligations of the industrial partner, on the suppositions, which I do
not admit, as already shown, that it may be possible to discriminate
between losses and obligations in connection with an industrial
partner, for whom there are none but the final losses, such as absorb
the assets of the company, which can not be otherwise than
outstanding obligations in favor of third parties inasmuch as, so long
Total ........................................................................................................
3. That immediately thereafter but prior to December 15, 1934,
plaintiffs purchased, in the ordinary course of business, from one of
the duly authorized agents of the National Charity Sweepstakes
Office one ticket bearing No. 178637 for the sum of two pesos (P2)
and that the said ticket was registered in the name of Jose Gatchalian
and Company;
4. That as a result of the drawing of the sweepstakes on December
15, 1934, the above-mentioned ticket bearing No. 178637 won one of
the third prizes in the amount of P50,000 and that the corresponding
check covering the above-mentioned prize of P50,000 was drawn by
the National Charity Sweepstakes Office in favor of Jose Gatchalian
& Company against the Philippine National Bank, which check was
from the levy of their property, the plaintiffs on August 28, 1936,
through Jose Gatchalian, Guillermo Tapia, Maria Santiago and
Emiliano Santiago, paid under protest to the municipal treasurer of
Pulilan, Bulacan the sum of P1,260.93 representing the unpaid
balance of the income tax and penalties demanded by defendant as
evidenced by income tax receipt No. 35811 which is attached and
marked Exhibit N and made a part hereof; and that on September 3,
1936, the plaintiffs formally protested to the defendant against the
payment of said amount and requested the refund thereof, copy of
which is attached and marked Exhibit O and made part hereof; but
that on September 4, 1936, the defendant overruled the protest and
denied the refund thereof; copy of which is attached and marked
Exhibit P and made a part hereof; and
16. That plaintiffs demanded upon defendant the refund of the total
sum of one thousand eight hundred and sixty three pesos and fortyfour centavos (P1,863.44) paid under protest by them but that
defendant refused and still refuses to refund the said amount
notwithstanding the plaintiffs' demands.
17. The parties hereto reserve the right to present other and
additional evidence if necessary.
Exhibit E referred to in the stipulation is of the following tenor:
To whom it may concern:
I, Jose Gatchalian, a resident of Pulilan, Bulacan, married, of age,
hereby certify, that on the 11th day of August, 1934, I sold parts of my
shares on ticket No. 178637 to the persons and for the amount
indicated below and the part of may share remaining is also shown to
wit:
Amou
nt
Address
P0.14
Pulilan,
Bulacan.
.13
Purchaser
- Do -
.17
- Do -
.14
- Do -
.13
- Do -
.16
- Do -
.13
- Do -
.13
- Do -
.07
- Do -
.08
- Do -
.15
- Do -
.13
- Do -
.08
- Do -
.18
- Do -
15. Jose
Gatchalian ............................................
.18
- Do -
Total cost of
2.00 said
ticket; and that, therefore, the persons named above are entitled to
the parts of whatever prize that might be won by said ticket.
Pulilan, Bulacan, P.I.
(Sgd.) JOSE GATCHALIAN
And a summary of Exhibits D-1 to D-15 is inserted in the bill of
exceptions as follows:
RECAPITULATIONS OF 15 INDIVIDUAL INCOME TAX RETURNS
FOR 1934 ALL DATED JANUARY 19, 1935 SUBMITTED TO THE
COLLECTOR OF INTERNAL REVENUE.
Name
Exhibit
Purchas Price
Expens
No.
1. Jose Gatchalian .......................................... D-1
e
Price
Won
es
P0.18
P4,4
25
P 480
D-2
.18
4,57
5
2,000
3. Saturnina
Silva .............................................
D-3
.08
1,87
5
360
D-4
.13
3,32
5
360
D-5
.15
3,82
5
720
6. Jose
Silva ....................................................
D-6
.08
1,87
5
360
D-7
.07
1,87
5
360
D-8
.13
3,15
0
240
D-9
.13
3,32
5
360
D-10
.16
4,10
0
960
D-11
.13
3,32
5
360
.14
3,32
5
360
.17
4,35
0
360
.13
3,32
5
360
D-14
D-15
.14
3,32
5
2.00
50,0
00
360
The gain derived or loss sustained from the sale or other disposition
by a corporation, joint-stock company, partnership, joint account
(cuenta en participacion), association, or insurance company, or
property, real, personal, or mixed, shall be ascertained in accordance
with subsections (c) and (d) of section two of Act Numbered Two
thousand eight hundred and thirty-three, as amended by Act
Numbered Twenty-nine hundred and twenty-six.
The foregoing tax rate shall apply to the net income received by every
taxable corporation, joint-stock company, partnership, joint account
(cuenta en participacion), association, or insurance company in the
calendar year nineteen hundred and twenty and in each year
thereafter.
There is no doubt that if the plaintiffs merely formed a community of
property the latter is exempt from the payment of income tax under
the law. But according to the stipulation facts the plaintiffs organized a
partnership of a civil nature because each of them put up money to
buy a sweepstakes ticket for the sole purpose of dividing equally the
prize which they may win, as they did in fact in the amount of
P50,000 (article 1665, Civil Code). The partnership was not only
formed, but upon the organization thereof and the winning of the
prize, Jose Gatchalian personally appeared in the office of the
Philippines Charity Sweepstakes, in his capacity as co-partner, as
such collection the prize, the office issued the check for P50,000 in
favor of Jose Gatchalian and company, and the said partner, in the
same capacity, collected the said check. All these circumstances
repel the idea that the plaintiffs organized and formed a community of
property only.
Having organized and constituted a partnership of a civil nature, the
said entity is the one bound to pay the income tax which the
defendant collected under the aforesaid section 10 (a) of Act No.
2833, as amended by section 2 of Act No. 3761. There is no merit in
plaintiff's contention that the tax should be prorated among them and
paid individually, resulting in their exemption from the tax.
In view of the foregoing, the appealed decision is affirmed, with the
costs of this instance to the plaintiffs appellants. So ordered.
February 6, 1934
funds of the partnership and the management of its affairs; that the
defendant be ordered to render an account of his management and to
pay to the plaintiff their participation in the profits thereof; that the
defendant be required to turn over to the receiver all of the funds of
the partnership and that the defendant be condemned to pay the
costs.
The plaintiffs put up a bond of P5,000 and a receiver was appointed
who also put up a bond for the same amount.
The receiver took over the management and took possession of all
the devices and implements used in the catching of "semillas de
bagus".
At the trial it was proven that before April 20, 1931, the defendant
obtained and sold a total of 975,000 "semillas de bagus" the market
value of which was P3 per thousand. The defendant made no report
of this nor did he pay the plaintiffs any part of the P2,925 realized by
him on the sales thereof. This was not denied.
In his two counter-complaints the defendant prays that he be
awarded damages in the sum of P34,700. He denies that there was a
partnership and depends principally upon the fact that the partnership
agreement was not in writing.
The partnership was conclusively proven by the oral testimony of the
plaintiffs and other witnesses, two of whom were Attorneys Lutero
and Maza. The defense made no objection to the questions asked
with regard to the forming of this partnership. This court has held that
if a party permits a contract, which the law provides shall be in
writing, to be proved, without objection as to the form of the proof, it is
just as binding as if the statute had been complied with.
However, we cannot agree with the appellant that one of the
requisites of a partnership agreement such as the one under
consideration, is that it should be in writing.
Article 1667 of the Civil Code provides that "Civil partnerships may be
established in any form whatever, unless real property or real rights
are contributed to the same, in which case a public instrument shall
be necessary."
are (1) that they shall organize a partnership for the bottling and
distribution of Mision soft drinks, plaintiff to act as industrial partner or
manager, and the defendant as a capitalist, furnishing the capital
necessary therefor; (2) that the defendant was to decide matters of
general policy regarding the business, while the plaintiff was to attend
to the operation and development of the bottling plant; (3) that the
plaintiff was to secure the Mission Soft Drinks franchise for and in
behalf of the proposed partnership; and (4) that the plaintiff was to
receive 30 per cent of the net profits of the business. The above
agreement was arrived at after various conferences and consultations
by and between them, with the assistance of their respective
attorneys. Prior to entering into this agreement, plaintiff had informed
the Mission Dry Corporation of Los Angeles, California, U.S.A.,
manufacturers of the bases and ingridients of the beverages bearing
its name, that he had interested a prominent financier (defendant
herein) in the business, who was willing to invest half a million dollars
in the bottling and distribution of the said beverages, and requested,
in order that he may close the deal with him, that the right to bottle
and distribute be granted him for a limited time under the condition
that it will finally be transferred to the corporation (Exhibit H).
Pursuant for this request, plaintiff was given "a thirty-days" option on
exclusive bottling and distribution rights for the Philippines" (Exhibit
J). Formal negotiations between plaintiff and defendant began at a
meeting on November 27, 1947, at the Manila Hotel, with their
lawyers attending. Before this meeting plaintiff's lawyer had prepared
the draft of the agreement, Exhibit II or OO, but this was not
satisfactory because a partnership, instead of a corporation, was
desired. Defendant's lawyer prepared after the meeting his own draft,
Exhibit HH. This last draft appears to be the main basis of the
agreement, Exhibit A.
The contract was finally signed by plaintiff on December 3, 1947.
Plaintiff did not like to go to the United States without the agreement
being not first signed. On that day plaintiff and defendant went to the
United States, and on December 10, 1947, a franchise agreement
(Exhibit V) was entered into the Mission Dry Corporation and
Fortunato F. Halili and/or Charles F. Woodhouse, granted defendant
the exclusive right, license, and authority to produce, bottle,
distribute, and sell Mision beverages in the Philippines. The plaintiff
and the defendant thereafter returned to the Philippines. Plaintiff
reported for duty in January, 1948, but operations were not begun
until the first week of February, 1948. In January plaintiff was given as
advance, on account of profits, the sum of P2,000, besides the use of
a car; in February, 1948, also P2,000, and in March only P1,000. The
car was withdrawn from plaintiff on March 9, 1948.
When the bottling plant was already on operation, plaintiff demanded
of defendant that the partnership papers be executed. At first
defendant executed himself, saying there was no hurry. Then he
promised to do so after the sales of the product had been increased
to P50,000. As nothing definite was forthcoming, after this condition
was attained, and as defendant refused to give further allowances to
plaintiff, the latter caused his attorneys to take up the matter with the
defendant with a view to a possible settlement. as none could be
arrived at, the present action was instituted.
In his complaint plaintiff asks for the execution of the contract of
partnership, an accounting of the profits, and a share thereof of 30
per cent, as well as damages in the amount of P200,000. In his
answer defendant alleges by way of defense (1) that defendant's
consent to the agreement, Exhibit A, was secured by the
representation of plaintiff that he was the owner, or was about to
become owner of an exclusive bottling franchise, which
representation was false, and plaintiff did not secure the franchise,
but was given to defendant himself; (2) that defendant did not fail to
carry out his undertakings, but that it was plaintiff who failed; (3) that
plaintiff agreed to contribute the exclusive franchise to the
partnership, but plaintiff failed to do so. He also presented a counterclaim for P200,000 as damages. On these issues the parties went to
trial, and thereafter the Court of First Instance rendered judgment
ordering defendant to render an accounting of the profits of the
bottling and distribution business, subject of the action, and to pay
plaintiff 15 percent thereof. it held that the execution of the contract of
partnership could not be enforced upon the parties, but it also held
that the defense of fraud was not proved. Against this judgment both
parties have appealed.
The most important question of fact to be determined is whether
defendant had falsely represented that he had an exclusive franchise
to bottle Mission beverages, and whether this false representation or
We conclude from all the foregoing that plaintiff did actually represent
to defendant that he was the holder of the exclusive franchise. The
defendant was made to believe, and he actually believed, that plaintiff
had the exclusive franchise. Defendant would not perhaps have gone
to California and incurred expenses for the trip, unless he believed
that plaintiff did have that exclusive privilege, and that the latter would
be able to get the same from the Mission Dry Corporation itself.
Plaintiff knew what defendant believed about his (plaintiff's) exclusive
franchise, as he induced him to that belief, and he may not be
allowed to deny that defendant was induced by that belief. (IX
Wigmore, sec. 2423; Sec. 65, Rule 123, Rules of Court.)
We now come to the legal aspect of the false representation. Does it
amount to a fraud that would vitiate the contract? It must be noted
that fraud is manifested in illimitable number of degrees or
gradations, from the innocent praises of a salesman about the
excellence of his wares to those malicious machinations and
representations that the law punishes as a crime. In consequence,
article 1270 of the Spanish Civil Code distinguishes two kinds of
(civil) fraud, the causal fraud, which may be a ground for the
annulment of a contract, and the incidental deceit, which only renders
the party who employs it liable for damages. This Court had held that
in order that fraud may vitiate consent, it must be the causal (dolo
causante), not merely the incidental (dolo causante), inducement to
the making of the contract. (Article 1270, Spanish Civil Code; Hill vs.
Veloso, 31 Phil. 160.) The record abounds with circumstances
indicative that the fact that the principal consideration, the main cause
that induced defendant to enter into the partnership agreement with
plaintiff, was the ability of plaintiff to get the exclusive franchise to
bottle and distribute for the defendant or for the partnership. The
original draft prepared by defendant's counsel was to the effect that
plaintiff obligated himself to secure a franchise for the defendant.
Correction appears in this same original draft, but the change is made
not as to the said obligation but as to the grantee. In the corrected
draft the word "capitalist"(grantee) is changed to "partnership." The
contract in its final form retains the substituted term "partnership."
The defendant was, therefore, led to the belief that plaintiff had the
exclusive franchise, but that the same was to be secured for or
transferred to the partnership. The plaintiff no longer had the
exclusive franchise, or the option thereto, at the time the contract was
perfected. But while he had already lost his option thereto (when the
contract was entered into), the principal obligation that he assumed or
undertook was to secure said franchise for the partnership, as the
bottler and distributor for the Mission Dry Corporation. We declare,
therefore, that if he was guilty of a false representation, this was not
the causal consideration, or the principal inducement, that led plaintiff
to enter into the partnership agreement.
But, on the other hand, this supposed ownership of an exclusive
franchise was actually the consideration or price plaintiff gave in
exchange for the share of 30 percent granted him in the net profits of
the partnership business. Defendant agreed to give plaintiff 30 per
cent share in the net profits because he was transferring his exclusive
franchise to the partnership. Thus, in the draft prepared by plaintiff's
lawyer, Exhibit II, the following provision exists:
3. That the MANAGER, upon the organization of the said corporation,
shall forthwith transfer to the said corporation his exclusive right to
bottle Mission products and to sell them throughout the Philippines.
As a consideration for such transfer, the CAPITALIST shall transfer to
the Manager fully paid non assessable shares of the said
corporation . . . twenty-five per centum of the capital stock of the said
corporation. (Par. 3, Exhibit II; emphasis ours.)
Plaintiff had never been a bottler or a chemist; he never had
experience in the production or distribution of beverages. As a matter
of fact, when the bottling plant being built, all that he suggested was
about the toilet facilities for the laborers.
We conclude from the above that while the representation that
plaintiff had the exclusive franchise did not vitiate defendant's consent
to the contract, it was used by plaintiff to get from defendant a share
of 30 per cent of the net profits; in other words, by pretending that he
had the exclusive franchise and promising to transfer it to defendant,
he obtained the consent of the latter to give him (plaintiff) a big slice
in the net profits. This is the dolo incidente defined in article 1270 of
the Spanish Civil Code, because it was used to get the other party's
consent to a big share in the profits, an incidental matter in the
agreement.
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