Beruflich Dokumente
Kultur Dokumente
t.hqw
partnership and which the said Puzon was to use in payment of his obligation
to the Rehabilitation Finance Corporation. 7 Puzon promised William Uy that
the amount of P150,000.00 would be given to the partnership to be applied
thusly: P40,000.00, as reimbursement of the capital contribution of William Uy
which the said Uy had advanced to clear the title of Puzon's property;
P50,000.00, as Puzon's contribution to the partnership; and the balance of
P60,000.00 as Puzon's personal loan to the partnership. 8
In the receipt for the amount of P30,000.00 dated October 29, 1956,
appellant also said:
26
the
+.wph!1
+.wph!1
26,027.04
TOTAL
Add: Items omitted from the
books but
P106,871.
P 8,242.
At the trial, the appellee presented a claim for the amounts of P3,917.39
and P4,665.00 which he also advanced for the construction projects but
which were not included in the Commissioner's Report. 44
recognized and
Miscellaneous
charged
to
P106,871.00
3,917,39
4,665.00
Total Investments
Pl 15,453.39
7,497.80
P128,103.77
Less:
Payroll
remittances
received
63,000.00
Add:
Other
expenses
incurred at the
65,103.77
MORAN,
OF
APPEALS
JR., petitioner,
and
MARIANO
E.
+.wph!1
t.hqw
(d) Legal interest on (a), (b) and (c) from the date the
complaint was filed (up to the time payment is made)
The petitioner contends that the respondent Court of Appeals decided
questions of substance in a way not in accord with law and with Supreme
Court decisions when it committed the following errors:
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN
HOLDING PETITIONER ISABELO C. MORAN, JR. LIABLE TO
RESPONDENT MARIANO E. PECSON IN THE SUM OF P47,500 AS
THE SUPPOSED EXPECTED PROFITS DUE HIM.
II
III
t.hqw
It does not follow however that the private respondent is not entitled to
recover any amount from the petitioner. The records show that the private
respondent gave P10,000.00 to the petitioner. The latter used this amount
for the printing of 2,000 posters at a cost of P2.00 per poster or a total
printing cost of P4,000.00. The records further show that the 2,000 copies
were sold at P5.00 each. The gross income therefore was P10,000.00.
Deducting the printing costs of P4,000.00 from the gross income of
P10,000.00 and with no evidence on the cost of distribution, the net
profits amount to only P6,000.00. This net profit of P6,000.00 should be
divided between the petitioner and the private respondent. And since only
P4,000.00 was undesirable by the petitioner in printing the 2,000 copies,
the remaining P6,000.00 should therefore be returned to the private
respondent.
Relative to the second alleged error, the petitioner submits that the award
of P8,000.00 as Pecson's supposed commission has no justifiable basis
in law.
Again, we agree with the petitioner.
The partnership agreement stipulated that the petitioner would give the
private respondent a monthly commission of Pl,000.00 from April 15,
1971 to December 15, 1971 for a total of eight (8) monthly commissions.
The agreement does not state the basis of the commission. The payment
of the commission could only have been predicated on relatively
extravagant profits. The parties could not have intended the giving of a
commission inspite of loss or failure of the venture. Since the venture was
a failure, the private respondent is not entitled to the P8,000.00
commission.
Anent the third assigned error, the petitioner maintains that the
respondent Court of Appeals erred in holding him liable to the private
respondent in the sum of P7,000.00 as a supposed return of investment
in a magazine venture.
In awarding P7,000.00 to the private respondent as his supposed return
of investment in the "Voice of the Veterans" magazine venture, the
respondent court ruled that:
t.hqw
t.hqw
t.hqw
A Yes, sir.
Q What happened to this promissory note of P14,000.00 which
you said represented P6,000.00 of your investment and
P8,000.00 promised profits?
A Latter, Mr. Moran returned to me P3,000.00 which represented
one-half (1/2) of the P6,000.00 capital I gave to him.
Q As a consequence of the return by Mr. Moran of one-half (1/2)
of the P6,000.00 capital you gave to him, what happened to the
promised profit of P8,000.00?
A It was reduced to one-half (1/2) which is P4,000.00.
Q Was there any document executed by Mr. Moran in
connection with the Balance of P3,000.00 of your capital
investment and the P4,000.00 promised profits?
A Yes, sir, he executed a promissory note.
Q I show you a promissory note in the amount of P7,000.00
dated March 30, 1971 which for purposes of Identification I
request the same to be marked as Exhibit M. . .
Court
t.hqw
Mark it as Exhibit M.
t.hqw
As already mentioned, there are risks in any business venture and the
failure of the undertaking cannot entirely be blamed on the managing
partner alone, specially if the latter exercised his best business judgment,
which seems to be true in this case. In view of the foregoing, there is no
reason to pass upon the fourth and fifth assignments of errors raised by
the petitioner. We likewise find no valid basis for the grant of the
counterclaim.
WHEREFORE, the petition is GRANTED. The decision of the respondent
Court of Appeals (now Intermediate Appellate Court) is hereby SET
ASIDE and a new one is rendered ordering the petitioner Isabelo Moran,
Jr., to pay private respondent Mariano Pecson SIX THOUSAND
(P6,000.00) PESOS representing the amount of the private respondent's
contribution to the partnership but which remained unused; and THREE
THOUSAND (P3,000.00) PESOS representing one half (1/2) of the net
profits gained by the partnership in the sale of the two thousand (2,000)
copies of the posters, with interests at the legal rate on both amounts
from the date the complaint was filed until full payment is made.
SO ORDERED.
1wph1.t
February 2, 1903
plaintiff made a demand for an accounting upon him, which the defendant
refused to render, denying the existence of the partnership altogether.
JOSE
FERNANDEZ, plaintiff-appellant,
vs.
FRANCISCO DE LA ROSA, defendant-appellee.
Vicente
Miranda,
Simplicio del Rosario, for appellee.
for
appellant.
LADD, J.:
The object of this action is to obtain from the court a declaration that a
partnership exists between the parties, that the plaintiff has a consequent
interested in certain cascoes which are alleged to be partnership property,
and that the defendant is bound to render an account of his administration
of the cascoes and the business carried on with them.
Judgment was rendered for the defendant in the court below and the
plaintiff appealed.
The respective claims of the parties as to the facts, so far as it is
necessary to state them in order to indicate the point in dispute, may be
briefly summarized. The plaintiff alleges that in January, 1900, he entered
into a verbal agreement with the defendant to form a partnership for the
purchase of cascoes and the carrying on of the business of letting the
same for hire in Manila, the defendant to buy the cascoes and each
partner to furnish for that purpose such amount of money as he could, the
profits to be divided proportionately; that in the same January the plaintiff
furnished the defendant 300 pesos to purchase a casco designated as
No. 1515, which the defendant did purchase for 500 pesos of Doa Isabel
Vales, taking the title in his own name; that the plaintiff furnished further
sums aggregating about 300 pesos for repairs on this casco; that on the
fifth of the following March he furnished the defendant 825 pesos to
purchase another casco designated as No. 2089, which the defendant did
purchase for 1,000 pesos of Luis R. Yangco, taking the title to this casco
also in his own name; that in April the parties undertook to draw up
articles of partnership for the purpose of embodying the same in an
authentic document, but that the defendant having proposed a draft of
such articles which differed materially from the terms of the earlier verbal
agreement, and being unwillingly to include casco No. 2089 in the
partnership, they were unable to come to any understanding and no
written agreement was executed; that the defendant having in the
meantime had the control and management of the two cascoes, the
(7) At some time subsequently to the failure of the attempt to agree upon
partnership articles and after the defendant had been operating the
cascoes for some time, the defendant returned to the plaintiff 1,125
pesos, in two different sums, one of 300 and one of 825 pesos. The only
evidence in the record as to the circumstances under which the plaintiff
received these sums is contained in his answer to the interrogatories
proposed to him by the defendant, and the whole of his statement on this
point may properly be considered in determining the fact as being in the
nature of an indivisible admission. He states that both sums were
received with an express reservation on his part of all his rights as a
partner. We find this to be the fact.
Two questions of law are raised by the foregoing facts: (1) Did a
partnership exist between the parties? (2) If such partnership existed, was
it terminated as a result of the act of the defendant in receiving back the
1,125 pesos?
(1) "Partnership is a contract by which two or more persons bind
themselves to contribute money, property, or industry to a common fund,
with the intention of dividing the profits among themselves." (Civil Code,
art. 1665.)
The essential points upon which the minds of the parties must meet in a
contract of partnership are, therefore, (1) mutual contribution to a
common stock, and (2) a joint interest in the profits. If the contract
contains these two elements the partnership relation results, and the law
itself fixes the incidents of this relation if the parties fail to do so. (Civil
Code, secs. 1689, 1695.)
(5) We are unable to find upon the evidence before us that there was any
specific verbal agreement of partnership, except such as may be implied
from the fact as to the purchase of the casco.
We have found as a fact that money was furnished by the plaintiff and
received by the defendant with the understanding that it was to be used
for the purchase of the cascoes in question. This establishes the first
element of the contract, namely, mutual contribution to a common stock.
The second element, namely, the intention to share profits, appears to be
an unavoidable deduction from the fact of the purchase of the cascoes in
common, in the absence of any other explanation of the object of the
parties in making the purchase in that form, and, it may be added, in view
of the admitted fact that prior to the purchase of the first casco the
formation of a partnership had been a subject of negotiation between
them.
(4) The balance of the purchase price of each of the two cascoes over
and above the amount contributed by the plaintiff was furnished by the
defendant.
waive his right to an accounting of the profits already realized, if any, and
a participation in them in proportion to the amount he had originally
contributed to the common fund? Was the partnership dissolved by the
"will or withdrawal of one of the partners" under article 1705 of the Civil
Code? We think these questions must be answered in the negative.
There was no intention on the part of the plaintiff in accepting the money
to relinquish his rights as a partner, nor is there any evidence that by
anything that he said or by anything that he omitted to say he gave the
defendant any ground whatever to believe that he intended to relinquish
them. On the contrary he notified the defendant that he waived none of
his rights in the partnership. Nor was the acceptance of the money an act
which was in itself inconsistent with the continuance of the partnership
relation, as would have been the case had the plaintiff withdrawn his
entire interest in the partnership. There is, therefore, nothing upon which
a waiver, either express or implied, can be predicated. The defendant
might have himself terminated the partnership relation at any time, if he
had chosen to do so, by recognizing the plaintiff's right in the partnership
property and in the profits. Having failed to do this he can not be
permitted to force a dissolution upon his co-partner upon terms which the
latter is unwilling to accept. We see nothing in the case which can give
the transaction in question any other aspect than that of the withdrawal by
one partner with the consent of the other of a portion of the common
capital.
The result is that we hold and declare that a partnership was formed
between the parties in January, 1900, the existence of which the
defendant is bound to recognize; that cascoes No. 1515 and 2089
constitute partnership property, and that the plaintiff is entitled to an
accounting of the defendant's administration of such property, and of the
profits derived therefrom. This declaration does not involve an
adjudication as to any disputed items of the partnership account.
The judgment of the court below will be reversed without costs, and the
record returned for the execution of the judgment now rendered. So
ordered.
Arellano,
C.J.,
Torres,
Willard, J., dissenting.
Cooper,
and
Mapa,
JJ., concur.
JOSE
GARRIDO, plaintiff-appellant,
vs.
AGUSTIN ASENCIO, defendant-appellee.
CARSON, J.:
Plaintiff and defendant were members of a partnership doing business
under the firm name of Asencio y Cia. The business of the partnership did
not prosper and it was dissolved by mutual agreement of the members.
The plaintiff brings this action to recover from the defendant, who appears
to have been left in charge of the books and the funds of the firm, the
amount of the capital which he had invested in the business. The
defendant, alleging that there had been considerable losses in the
conduct of the business of the partnership, denied that there was
anything due the plaintiff as claimed, and filed a cross complaint wherein
he prayed for a judgment against the plaintiff for a certain amount which
he alleged to be due by the plaintiff under the articles of partnership on
account of plaintiff's share of these losses.
The trial court found that the evidence substantially sustains the claim of
the defendant as to the alleged losses in the business of the partnership
and gave judgment in his favor.
The only question submitted on appeal is the competency and sufficiently
of the evidence on which the trial court based its findings as to the status
of the accounts of the company.
Plaintiff and appellant makes the following assignment of errors:
First. The trial court erred in holding the estado de cuentas (statement of
account) of the partnership of Asencio y Cia. submitted by the defendant
as competent and sufficient evidence in this case.
Second. The trial court erred in holding that evidence of record proved the
existence of losses in the business of the said partnership.
Third. The trial court erred in refusing to give judgment in favor of the
plaintiff.
It appears from the record that by mutual agreement the defendant had
general charge and supervision of the books and funds of the firm, but it
appears that these books were at all times open to the inspection of the
plaintiff, and there is evidence which tends to show that the plaintiff
himself made entries in these books touching particular transactions in
which he happened to be interested; so that while it is clear that the
defendant was more especially burdened with the care of the books and
accounts of the partnership, it would appear that the plaintiff had equal
rights with the defendant in this regard, and that during the existence of
the partnership they were equally responsible for the mode in which the
books were kept and that the entries made by one had the same effect as
if they had been made by the other.
At the trial the principal question at issue was the amount of the profits or
losses of the business of the partnership during the period of its
operation. The plaintiff made no allegation as to profits, but denied
defendant's allegation as to the losses. The defendant in support of his
allegations offered in evidence the estado de cuentas (general statement
of accounts) of the partnership, supported by a number of vouchers, and
by his own testimony under oath as to the accuracy and correctness of
the items set out therein. The plaintiff assigns as error the admission of
this account on the ground that the books of the partnership were not kept
in accordance with the provisions of Title III, Book I, of the Code of
Commerce.
It is not necessary for us to consider this assignment of error as to the
inadmissibility of this account on the ground that the books were not kept
in accordance with the provisions of the Commercial Code, because no
objection was made to its admission in the court below; and further,
because in any event it was admissible under the provisions of section
338 of the Code of Civil Procedure as memorandum used to refresh the
memory of the witness. (Tan Machan vs. Gan Aya, 3 Phil. Rep., 684.) We
think further that in view of the testimony of record that the plaintiff jointly
with the defendant kept these books, made entries therein, and was
responsible with him therefor, the doctrine laid down in Behn, Meyer &
Co., vs. Rosatzin (5 Phil. Rep., 660) is applicable in this case, and the
correctness of the entries in these books must be taken to be admitted by
him, except so far as it is made to appear that they are erroneous as a
result of fraud or mistake.
It appears from the record that the statement of account, the vouchers,
and the books of the company were placed at the disposition of the
plaintiff for more than six weeks prior to the trial, and that during the trial
he was given every opportunity to indicate any erroneous or fraudulent
items appearing in the account, yet he was unable, or in any event he
declined to specify such items, contenting himself with a general
statement to the effect that there must be some mistake, as he did not
and could not believe that the business had been conducted at a loss.
The court below seems to have scrutinized the account with painstaking
care, and to have been satisfied as to its accuracy, except as to some
unimportant items, which he corrected, but counsel for the appellant
reiterates in this court his general allegations as to the inaccuracy of the
account, and points out some instances wherein he alleges that items of
expenditure appear to have been charged against the partnership more
than once.
Upon the whole record as brought here by the appellant we are not able
to say that the weight of the evidence does not sustain the findings of the
trial court, and the judgment entered in that court should be, and is
hereby, affirmed with the costs of this instance against the appellant. So
ordered.
Arellano, C.J., Torres, Mapa Johnson, Willard, and Tracey, JJ., concur.
PEDRO
vs.
ONG
PONG
CO
ONG PONG CO., appellant.
MARTINEZ, plaintiff-appellee,
and
ONG
LAY, defendant
1. For not having taken into consideration the fact that the reason
for the closing of the store was the ejectment from the premises
occupied by it.
2. For not having considered the fact that there were losses.
3. For holding that there should have been profits.
Fernando
de
la
O'Brien and DeWitt for appellee.
Cantera
for
appellant.
ARELLANO, C.J.:
On the 12th of December, 1900, the Martinez herein delivered P1,500 to
the Ong Pong Co who, in a private document, acknowledged that they
had received the same with the agreement, as stated by them, "that we
are to invest the amount in a store, the profits or losses of which we are to
divide with the former, in equal shares."
The Martinez filed a complaint on April 25, 1907, in order to compel the
Ong Pong Co to render him an accounting of the partnership as agreed
to, or else to refund him the P1,500 that he had given them for the said
purpose. Ong Pong Co alone appeared to answer the complaint; he
admitted the fact of the agreement and the delivery to him and to Ong Lay
of the P1,500 for the purpose aforesaid, but he alleged that Ong Lay, who
was then deceased, was the one who had managed the business, and
that nothing had resulted therefrom save the loss of the capital of P1,500,
to which loss the Martinez agreed.
The judge of the Court of First Instance of the city of Manila who tried the
case ordered Ong Pong Co to return to the Martinez one-half of the said
capital of P1,500 which, together with Ong Lay, he had received from the
Martinez, to wit, P750, plus P90 as one-half of the profits, calculated at
the rate of 12 per cent per annum for the six months that the store was
supposed to have been open, both sums in Philippine currency, making a
total of P840, with legal interest thereon at the rate of 6 per cent per
annum, from the 12th of June, 1901, when the business terminated and
on which date he ought to have returned the said amount to the Martinez,
until the full payment thereof with costs.
From this judgment Ong Pong Co appealed to this court, and assigned
the following errors:
"there were some profits, but not large ones." This court, however, does
not find that the amount thereof has been proven, nor deem it possible to
estimate them to be a certain sum, and for a given period of time; hence,
it can not admit the estimate, made in the judgment, of 12 per cent per
annum for the period of six months.
Inasmuch as in this case nothing appears other than the failure to fulfill an
obligation on the part of a partner who acted as agent in receiving money
for a given purpose, for which he has rendered no accounting, such agent
is responsible only for the losses which, by a violation of the provisions of
the law, he incurred. This being an obligation to pay in cash, there are no
other losses than the legal interest, which interest is not due except from
the time of the judicial demand, or, in the present case, from the filing of
the complaint. (Arts. 1108 and 1100, Civil Code.) We do not consider that
article 1688 is applicable in this case, in so far as it provides "that the
partnership is liable to every partner for the amounts he may have
disbursed on account of the same and for the proper interest," for the
reason that no other money than that contributed as is involved.
As in the partnership there were two administrators or agents liable for
the above-named amount, article 1138 of the Civil Code has been
invoked; this latter deals with debts of a partnership where the obligation
is not a joint one, as is likewise provided by article 1723 of said code with
respect to the liability of two or more agents with respect to the return of
the money that they received from their principal. Therefore, the other
errors assigned have not been committed.
In view of the foregoing judgment appealed from is hereby affirmed,
provided, however, that the defendant Ong Pong Co shall only pay the
Martinez the sum of P750 with the legal interest thereon at the rate of 6
per cent per annum from the time of the filing of the complaint, and the
costs, without special ruling as to the costs of this instance. So ordered.
partnership did not express the true agreement of the parties, which was
that the plaintiff was not an industrial partner; that she did not in fact
contribute industry to the partnership; and that her share of 30% was to
be based on the profits which might be realized by the partnership only
until full payment of the loan which it had obtained in December, 1955
from the Rehabilitation Finance Corporation in the sum of P30,000, for
which the plaintiff had signed a promisory note as co-maker and
mortgaged her property as security.
The parties are in agreement that the main issue in this case is "whether
the plaintiff-appellee (respondent here) is an industrial partner as claimed
by her or merely a profit sharer entitled to 30% of the net profits that may
be realized by the partnership from June 7, 1955 until the mortgage loan
from the Rehabilitation Finance Corporation shall be fully paid, as claimed
by appellants (herein petitioners)." On that issue the Court of First
Instance found for the plaintiff and rendered judgement "declaring her an
industrial partner of Evangelista & Co.; ordering the defendants to render
an accounting of the business operations of the (said) partnership ... from
June 7, 1955; to pay the plaintiff such amounts as may be due as her
share in the partnership profits and/or dividends after such an accounting
has been properly made; to pay plaintiff attorney's fees in the sum of
P2,000.00 and the costs of this suit."
The defendants appealed to the Court of Appeals, which thereafter
affirmed judgments of the court a quo.
In the petition before Us the petitioners have assigned the following
errors:
I. The Court of Appeals erred in the finding that the
respondent is an industrial partner of Evangelista & Co.,
notwithstanding the admitted fact that since 1954 and until
after promulgation of the decision of the appellate court
the said respondent was one of the judges of the City
Court of Manila, and despite its findings that respondent
had been paid for services allegedly contributed by her to
the partnership. In this connection the Court of Appeals
erred:
(A) In finding that the "amended Articles of
Co-partnership," Exhibit "A" is conclusive
evidence that respondent was in fact made
an industrial partner of Evangelista & Co.
February 6, 1931
MAXIMILIANO
SANCHO, plaintiff-appellant,
vs.
SEVERIANO LIZARRAGA, defendant-appellee.
Jose Perez Cardenas and Jose M. Casal
Celso B. Jamora and Antonio Gonzalez for appellee.
for
appellant.
ROMUALDEZ, J.:
The plaintiff brought an action for the rescission of a partnership contract
between himself and the defendant, entered into on October 15, 1920,
the reimbursement by the latter of his 50,000 peso investment therein,
with interest at 12 per cent per annum form October 15, 1920, with costs,
and any other just and equitable remedy against said defendant.
The defendant denies generally and specifically all the allegations of the
complaint which are incompatible with his special defenses, crosscomplaint and counterclaim, setting up the latter and asking for the
dissolution of the partnership, and the payment to him as its manager and
administrator of P500 monthly from October 15, 1920, until the final
dissolution, with interest, one-half of said amount to be charged to the
plaintiff. He also prays for any other just and equitable remedy.
The Court of First Instance of Manila, having heard the cause, and finding
it duly proved that the defendant had not contributed all the capital he had
bound himself to invest, and that the plaintiff had demanded that the
defendant liquidate the partnership, declared it dissolved on account of
the expiration of the period for which it was constituted, and ordered the
defendant, as managing partner, to proceed without delay to liquidate it,
submitting to the court the result of the liquidation together with the
accounts and vouchers within the period of thirty days from receipt of
notice of said judgment, without costs.
The plaintiff appealed from said decision making the following
assignments of error:
1. In holding that the plaintiff and appellant is not entitled to the
rescission of the partnership contract, Exhibit A, and that article
1124 of the Civil Code is not applicable to the present case.
2. In failing to order the defendant to return the sum of P50,000 to
the plaintiff with interest from October 15, 1920, until fully paid.
The language of the receipt could not be any clearer. It indicates that the
money delivered to Liwanag was for a specific purpose, that is, for the
purchase of cigarettes, and in the event the cigarettes cannot be sold, the
money must be returned to Rosales.
Liwanag advances the theory that the intention of the parties was to enter
into a contract of partnership, wherein Rosales would contribute the funds
while she would buy and sell the cigarettes, and later divide the profits
between
them. 1 She also argues that the transaction can also be interpreted as a
simple loan, with Rosales lending to her the amount stated on an installment
basis. 2
for
appellant.
ARELLANO, C.J.:
Pedro Larin delivered to Pedro Tarug P172, in order that the latter, in
company with Eusebio Clarin and Carlos de Guzman, might buy and sell
mangoes, and, believing that he could make some money in this
business, the said Larin made an agreement with the three men by which
the profits were to be divided equally between him and them.
Pedro Tarug, Eusebio Clarin, and Carlos de Guzman did in fact trade in
mangoes and obtained P203 from the business, but did not comply with
the terms of the contract by delivering to Larin his half of the profits;
neither did they render him any account of the capital.
Larin charged them with the crime of estafa, but the provincial fiscal filed
an information only against Eusebio Clarin in which he accused him of
appropriating to himself not only the P172 but also the share of the profits
that belonged to Larin, amounting to P15.50.
Pedro Tarug and Carlos de Guzman appeared in the case as witnesses
and assumed that the facts presented concerned the defendant and
themselves together.
The trial court, that of First Instance of Pampanga, sentenced the
defendant, Eusebio Clarin, to six months' arresto mayor, to suffer the
accessory penalties, and to return to Pedro Larin P172, besides P30.50
as his share of the profits, or to subsidiary imprisonment in case of
insolvency, and to pay the costs. The defendant appealed, and in
deciding his appeal we arrive at the following conclusions:
When two or more persons bind themselves to contribute money,
property, or industry to a common fund, with the intention of dividing the
When Larin put the P172 into the partnership which he formed with Tarug,
Clarin, and Guzman, he invested his capital in the risks or benefits of the
business of the purchase and sale of mangoes, and, even though he had
reserved the capital and conveyed only the usufruct of his money, it would
not devolve upon of his three partners to return his capital to him, but
upon the partnership of which he himself formed part, or if it were to be
done by one of the three specifically, it would be Tarug, who, according to
the evidence, was the person who received the money directly from Larin.
The P172 having been received by the partnership, the business
commenced and profits accrued, the action that lies with the partner who
furnished the capital for the recovery of his money is not a criminal action
for estafa, but a civil one arising from the partnership contract for a
liquidation of the partnership and a levy on its assets if there should be
any.
No. 5 of article 535 of the Penal Code, according to which those are guilty
of estafa "who, to the prejudice of another, shall appropriate or misapply
any money, goods, or any kind of personal property which they may have
received as a deposit on commission for administration or in any other
character producing the obligation to deliver or return the same," (as, for
example, in commodatum, precarium, and other unilateral contracts which
require the return of the same thing received) does not include money
received for a partnership; otherwise the result would be that, if the
partnership, instead of obtaining profits, suffered losses, as it could not be
held liable civilly for the share of the capitalist partner who reserved the
ownership of the money brought in by him, it would have to answer to the
charge of estafa, for which it would be sufficient to argue that the
partnership had received the money under obligation to return it.
We therefore freely acquit Eusebio Clarin, with the costs de oficio. The
complaint for estafa is dismissed without prejudice to the institution of a
civil action.