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2 Jo Chung Cang v. Pacific Commercial Co.

FACTS
In an insolvency proceedings of petitionerestablishment, Sociedad Mercantil, Teck Seing &
Co., Ltd., creditors, Pacific Commercial and others
filed a motion with the Court to declare the individual
partners parties to the proceeding, for each to file an
inventory, and for each to be adjudicated as insolvent
debtors.
RTC granted the motion but subsequently denied it.
Hence this appeal.
ISSUE
Whether the nature of the mercantile establishment, Teck
Seing & Co., Ltd. is a limited partnership.
HELD
NO.
The contract of partnership established a general
partnership.
By process of elimination, Teck Seing & Co., Ltd. Is not
a corporation nor an accidental partnership (joint
account association).
To establish a limited partnership, there must be, at
least, one general partner and the name of at least one of
the general partners must appear in the firm name. This
requirement has not been fulfilled. Those who seek to
avail themselves of the protection of laws permitting the
creation of limited partnerships must the show a
substantially full compliance with such laws. It must be
noted that all the requirements of the Code have been
met w/ the sole exception of that relating to the
composition of the firm name.
The legal intention deducible from the acts of the parties
controls in determining the existence of a partnership. If
they intend to do a thing w/c in law constitutes a
partnership, they are partners although their very
purpose was to avoid the creation of such relation. Here
the intention of the persons making up, Teck Seing &
Co., Ltd. Was to establish partnership w/c they
erroneously denominated as a limited partnership.
Order appealed from is reversed.

English translation of Spanish Docu from full text


"LIMITED MERCANTILE COMPANY SCRIPTURE"
"Know all for the present:
"That we, Santiago Jo Chung Cang, of legal age, Trader,
neighbor and resident of the municipality of Tabogon,
Province of Cebu, Philippines, Go Tayco, of legal age,
Merchant, neighbor and resident of the municipality of
Cebu, Province Of Cebu, Philippine Islands, Yap Gueco,
of legal age, trader, Neighbor and resident of the
municipality and Province of Cebu, Islas Philippines,
Lim Yogsing, of legal age, trader, neighbor and Resident
of the municipality of Cebu, Province of Cebu, Islands
Philippines, and Jo Ybec, of legal age, trader, Resident
of the municipality of Jagna, Province of Bohol, Islands
Philippines, we hereby state that we constitute and We
form a limited trading company, under the laws in force
In the Philippines, and to be registered in accordance
with the Regulations of the Commercial Code in the
Philippines.
"That the business name shall be named" Teck Seing &
Co., Ltd. "and Will have its main address at Calle
Magallanes No. 94, of the City of Cebu, Province of
Cebu, Philippine Islands.
"That the social capital will be thirty thousand pesos
(P30,000) Currency of the Philippine Islands, divided
into five shares of P6,000 as follows: Santiago Jo Chung
Cang; P6,000.00 - Go Tayco; 6,000.00 - Yap Gueco;
6,000.00 - Jo Ybec; 6,000.00- Lim Yogsing - 6,000.00
Total ................................................. ......... 30,000.00
"That the duration of the partnership shall be six years,
from The date of this deed, and this time may be
extended to Unanimous discretion of all shareholders.
"The object of the partnership will be the purchase and
sale of goods in general.
"The administrator or administrators of the company
may, With prior agreement of the shareholders, establish
how many Branches or establishments deemed necessary
to facilitate Their business and the greater development
of the trade in which the Society, verifying all the
operations they create Suitable for the promotion of its
capital.
"The profits or losses that result during each year Shall
be distributed proportionally among the shareholders,
According to the capital contributed by each one of
them.

"The profits that will result in each commercial year, if


Result in some gains, they can not be withdrawn by the
Shareholders within a period of three years from the date
of Date of the first annual balance of the business,
leaving therefore Reserves in order to increase the
capital contributed by The shareholders and thus expand
the sphere of action undertaken by the same company.
To the The three-year term expires, each shareholder
may Withdraw or deposit in the hands of the company,
the profits Should correspond during that three-year
term.
"That shareholders may not extract or dispose in any
Time any quantity or quantities of the company, which
Has been contributed by them, to meet their expenses
Not even paying any income on the amount Attempt to
dispose of or extract from that company.
"The shareholder Mr. Lim Yogsing will be in charge, in
union of the Mr. Vicente Jocson Jo, the Company's
management, who May use the social signature
indistinctly, being for Consequently authorized both to
do on her behalf All kinds of business operations,
business speculations, Practicing judicially and
extrajudicially how many acts For the good of society,
appoint attorneys-in-fact or Lawyers for claims and
collection of credits and to propose Exceptions. In case
of absence, illness or Any other impediment of
shareholder Mr. Lim Yogsing, it may confer general or
special power to the shareholder Which creates
convenient for which in union of the administrator
Assistant to Mr. Vicente Jocson Jo, could both
administer Conveniently the business of the company.
That the Administrators may have the necessary
employees for the Management of the company's
businesses, and will determine the That these employees
should receive for services rendered to the society.
"That both administrators may have one thousand two
hundred Pesos (P1,200) Philippine currency, annually,
for your expenses Particular, said quantity of P1,200
being that corresponding to To each of said
administrators, as emoluments Wages that are assigned
to each, For his work in the administration of society.
It being understood that, shareholders may dispose of
each purpose Year the bonus to be granted to each
manager, if the Businesses of the year were buoyant and
justified the granting of a Special bonus, apart from the
salary set forth here and specified.
"That passed the term of six years, and is of the
convenience of The shareholders continued the business
of this company, Term will be extended for an equal

number of years, without Of the granting of further


deeds, leaving the present in Force until the term
established by all shareholders.
"That any differences that may arise between
Shareholders, either for the reason stipulated in this
deed, Already by acts in the course and direction of the
businesses in her Will be arranged to arrange between
the same friendly and Extrajudicially, and if an
arrangement is not achieved in this way, Such
shareholders shall appoint an arbitrator whose resolution
is All bound and hereby undertake and undertake to
Accept it in all its parts, renouncing further resources.
"In what terms do we make this deed of Company, and
we promise to keep it faithfully and Strictly according to
the pacts we have established.
"In testimony of all of which, we signed in the City of
Cebu, Province of Cebu, Philippine Islands, today,
October 31, thousand Nine hundred and ten.
"In the Municipality of Cebu, of the aforementioned
Province, I. F., Today, October 31, 1919, A. D., before
me, a Notary Public who Subscribe, personally appeared
Santiago Jo Chung Cang, Go Tayco, Yap Gueco, Lim
Yogsing and Jo Ybec, represented The latter by Ho Seng
Sian, as authorized in Telegram dated September 27,
1919 that I have been Presented at the same event, of
whom I give the assurance I know for being the same
people who gave the preinsert Document, ratifying
before me its content and stating that it is the Itself an act
of his free and voluntary bestowal. Mr. Santiago Jo
Chung Cang showed me his personal certificate issued
In Cebu, Cebu, I.F. on September 19, 1919 under No.
H77742, Go Tayco also showed me his issued in Cebu,
Cebu, I.F., on October 9, 1919 under No. G2042490, Yap
Gueco also showed me his one issued in Cebu, Cebu,
I.F. On January 20, 1919 under No. F1452296, Lim
Yogsing. I also exhibited his own issued in Cebu, Cebu,
I.F., the day February 26, 1919 under No. F1455662, and
Ho Seng Sian Representative of Jo Ybec, showed me his
personal certificate issued In Cebu, Cebu, I. F. on
February 4, 1919 under No.
F1453733.
"In front of me,
(Signed) "F. V. ARIAS
"Public notary
"Until January 1, 1920
"Seat No. 157
Page 95 of my
Notary Registration