EN BANC
[G.R. No. 8853. March 22, 1915. ]
ALDECOA & CO., in liquidation, Plaintiff-Appellant, v. WARNER, BARNES & CO. (LTD.) , Defendant-Appellant.
Antonio Sanz for plaintiff.
Haussermann, Cohn & Fisher for defendant.
SYLLABUS
1. CONTRACTS; REQUISITES AND VALIDITY. — Whatever be their form, contracts are binding when the conditions for their validity concur therein and they are not repugnant to law, morality, and public order. (Civil Code, arts. 1261, 1278; De Icaza v. Perez, 5 Phil. Rep., 166; Alcantara v. Alinea, 8 Phil. Rep., 111.)
2. APPEAL; ASSIGNMENT OF ERRORS. — When an appellant has not assigned errors incurred in denying the revision of certain accounts previously approved, this court in its decision will not concern itself with whether the revision sought is proper, because Rule 20 of the Rules of the Supreme Court has not been complied with.
3. EVIDENCE; HEARSAY. — The testimony of a witness whose affirmations are based on statements that have been made to him by others, without his being able to affirm that he had personal knowledge of the facts set forth in his testimony, is undoubtedly hearsay evidence, inadmissible under section 276 of the Code of Civil Procedure.
4. ID.; CERTIFICATES OF EXTRACTS FROM COMMERCIAL BOOKS. — Certificates issued by agents of commercial firms, containing certain data copied from the books of their respective firms, do not constitute evidence, nor do the books from which they are taken, against third persons who have had no connection with or any interest in said data, nor are the sworn declarations of the agents who attested said certificates sufficient to give them the force and weight they lack, outside their authenticity, especially when said agents have been unable to affirm that they had personal knowledge of the facts stated therein.
5. ID.; COMMERCIAL BOOKS. — It is an established principle in the courts of this country and of the United States that merchants’ books do not constitute evidence against third persons not interested in their accounts, except under certain requisites, for the general rule is that to admit as evidence the accounts on the books of commercial firms, without the said requisites, would infringe the principle of res inter alios acta.
6. ID.; CLASSIFICATION OF HEMP. — From the weight of the evidence adduced by the parties in this case the conclusion can be established that the classification of hemp in the Manila market is never based solely on the brand stamped on the bundles of fiber, but rather on the examination or inspection made in each case by experts appointed by the interested firms to appraise it.
7. PARTNERSHIP; JOINT ACCOUNT PARTNERSHIP; ACQUISITION OF REALTY BY ONE PARTNER. — When two commercial houses have formed a partnership for the purpose of becoming interested in each other’s business, each to share equally in the profits or losses in a fixed proportion, and when one of them acquired real property for itself, in its own name, with its own funds, and without any intervention on the other’s part, all this being recorded in the instruments executed therefor by the vendors and where the said house registered the property in the property registry as being for itself alone, there can be no question that the vendee firm is the sole owner of the realty purchased, for the mere circumstance that the two houses are in partnership, and the vendee firm is the manager thereof, does not warrant the finding that the other, which took no part in the purchase of the realty and cannot invoke any right derived from a private agreement, has acquired the right of joint-ownership in the realty acquired privately by the other firm.
8. ID.; ID.; ID. — There is no provision that prohibits one of the firms associated in a partnership, even though it be the active partner therein, from acquiring realty, a thing completely foreign to the business of the joint-account partnership; nor is article 137 of the Code of Commerce applicable thereto, for it must be remembered that the property was acquired by one of said commercial houses on its own private account and not on a joint account, for a joint-account partnership does not partake of the nature of a genuine mercantile company or firm, it does not possess the conditions concurring therein, and it is not in itself a juridical entity like other ordinary partnerships recognized in law.
2. APPEAL; ASSIGNMENT OF ERRORS. — When an appellant has not assigned errors incurred in denying the revision of certain accounts previously approved, this court in its decision will not concern itself with whether the revision sought is proper, because Rule 20 of the Rules of the Supreme Court has not been complied with.
3. EVIDENCE; HEARSAY. — The testimony of a witness whose affirmations are based on statements that have been made to him by others, without his being able to affirm that he had personal knowledge of the facts set forth in his testimony, is undoubtedly hearsay evidence, inadmissible under section 276 of the Code of Civil Procedure.
4. ID.; CERTIFICATES OF EXTRACTS FROM COMMERCIAL BOOKS. — Certificates issued by agents of commercial firms, containing certain data copied from the books of their respective firms, do not constitute evidence, nor do the books from which they are taken, against third persons who have had no connection with or any interest in said data, nor are the sworn declarations of the agents who attested said certificates sufficient to give them the force and weight they lack, outside their authenticity, especially when said agents have been unable to affirm that they had personal knowledge of the facts stated therein.
5. ID.; COMMERCIAL BOOKS. — It is an established principle in the courts of this country and of the United States that merchants’ books do not constitute evidence against third persons not interested in their accounts, except under certain requisites, for the general rule is that to admit as evidence the accounts on the books of commercial firms, without the said requisites, would infringe the principle of res inter alios acta.
6. ID.; CLASSIFICATION OF HEMP. — From the weight of the evidence adduced by the parties in this case the conclusion can be established that the classification of hemp in the Manila market is never based solely on the brand stamped on the bundles of fiber, but rather on the examination or inspection made in each case by experts appointed by the interested firms to appraise it.
7. PARTNERSHIP; JOINT ACCOUNT PARTNERSHIP; ACQUISITION OF REALTY BY ONE PARTNER. — When two commercial houses have formed a partnership for the purpose of becoming interested in each other’s business, each to share equally in the profits or losses in a fixed proportion, and when one of them acquired real property for itself, in its own name, with its own funds, and without any intervention on the other’s part, all this being recorded in the instruments executed therefor by the vendors and where the said house registered the property in the property registry as being for itself alone, there can be no question that the vendee firm is the sole owner of the realty purchased, for the mere circumstance that the two houses are in partnership, and the vendee firm is the manager thereof, does not warrant the finding that the other, which took no part in the purchase of the realty and cannot invoke any right derived from a private agreement, has acquired the right of joint-ownership in the realty acquired privately by the other firm.
8. ID.; ID.; ID. — There is no provision that prohibits one of the firms associated in a partnership, even though it be the active partner therein, from acquiring realty, a thing completely foreign to the business of the joint-account partnership; nor is article 137 of the Code of Commerce applicable thereto, for it must be remembered that the property was acquired by one of said commercial houses on its own private account and not on a joint account, for a joint-account partnership does not partake of the nature of a genuine mercantile company or firm, it does not possess the conditions concurring therein, and it is not in itself a juridical entity like other ordinary partnerships recognized in law.
D E C I S I O N
TORRES, J.:
This is the second time this case has been brought before this court on appeal. This court, in deciding the first appeal in its decision of August 6, 1910 (16 Phil. Rep., 423, 439), set aside the judgment appealed from and ordered the holding of a new trial, with the following directions:jgc:chanrobles.com.ph
"First, the defendant shall be advised that it must, within a fixed period, render an account verified by vouchers, of its management of the business of the joint-account partnership with the plaintiff, pertaining to the months from December 1, 1898, to June 29, 1899, and to the twelve months of the year 1903, unless it shall prove in a satisfactory manner that the said partnership began on June 30, 1899, contrary to the averment of the plaintiff supported by evidence that it commenced on December 1, 1898, in which case the said rendering of account shall be restricted to the twelve months of the year 1903, in the accounts of which last period must be included all the property that is found to belong to the said partnership; second, in the examination of the accounts that may be found to’ have been rendered, the parties may allege and prove facts conducive to their revision or approval besides availing themselves of the evidence already adduced at trial; and, third, with respect to the accounts corresponding to the period from June 30, 1899, to December 31, 1902, already approved, the trial court shall proceed in accordance with law, duly considering the errors, omissions, mistakes and fraudulent or deceitful acts that have been alleged or may specifically be alleged in rejecting the said approved accounts, as well as the evidence introduced by both parties, and it shall be careful to decide in its final judgment all the issues raised between the parties in the course of this litigation and to provide such remedies as are proper in regard to their respective claims."cralaw virtua1aw library
The complaint that instituted the suit wherein the above decision was rendered, is contained in the petition dated September 26, 1907, and Aldecoa & Co., in liquidation, alleged therein as a cause of action:jgc:chanrobles.com.ph
"That on December 1, 1898, the plaintiff company became interested in the business of Warner, Barnes & Co. (Ltd.) , in Albay, in the purchase of hemp in the pueblos of Tabaco and Legaspi, and formed with them a joint-account partnership whereby Aldecoa & Co., were to share equally in the gains and losses of the business in Albay; that Warner Barnes & Co. (Ltd.) acted and continued to act as manager (gestora) of said joint-account partnership and as such manager was obliged to render accounts supported by proofs, and to liquidate the business; that defendant not only had not done this, in spite of the demand made upon it but has expressly denied the right of plaintiff to examine the vouchers, contenting itself with forwarding to the latter copies of the entries in defendant’s books, which entries contained errors and omissions that hereinafter will be mentioned; that said entries, moreover, show the partnership to have commenced on June 30, 1899, whereas its operations should have commenced and did commence on December 1, 1898, on which date the joint-account partnership was formed; that, said operations having been closed on December 31, 1903, Warner, Barnes & Co. (Ltd.) , the defendant, has not realized upon the assets of the firm by selling the property which constitutes its capital; that the directors and managers of the defendant company, unlawfully, maliciously, and criminally conspired with the persons who were managing the commercial firm of Aldecoa & Co. during the years 1899, 1900, 1901, 1902, and 1903, to defraud the latter of its interest in the said joint-account partnership, buying the silence of its managers with respect to the operations of the joint-account partnership during the time comprised between December 1, 1898, and June 30, 1899, as well as with respect to the errors and omissions in the accounts relating to the second semester of 1899 and those relating to 1900, 1901, 1902, and 1903; that said fraudulent acts were not known to the partner of the plaintiff firm until the managers who acted in collusion with the managers of the defendant firm had ceased to hold their positions, to wit, until after December 31, 1906; that by reason of this conspiracy to defraud the plaintiff the defendant had been benefited; that the errors and omissions found in the entries of the books kept by the defendant firm as manager of the joint-account partnership are those expressed in detail here below:jgc:chanrobles.com.ph
"(a) It appears that between the 10th of July and the 26th of December, 1899, 43,934 piculs of hemp arrived in Manila for the joint-account partnership, which were purchased in Legaspi and Tabaco at 13 pesos per picul, and, after charging against this hemp excessive expenses for collection, storage, freight, fire, marine, and war insurance, personnel, etc., the defendant, Warner, Barnes & Co., as manager of the joint-account partnership and commission agents of their joint-account partners, claim that they purchased the said hemp for themselves, but do not give the price received from the sale thereof and merely credit it at 13 pesos a picul, when the average market price at that time was 16.50 pesos a picul; defendant thereby injuring plaintiff to the amount of P76,884.50.
"(b) Striking a balance from the amount of hemp debited and that credited, there results a difference of 4,332.96 piculs not credited which, at 24 pesos a picul, the market price at the time, represents an injury to plaintiff amounting to P51,995.52, the said deficit, with respect to the hemp, pertaining to the period beginning with December 31, 1899, in the manner shown by the following table:chanrob1es virtual 1aw library
Invoices &
Dr. Cr.
Piculs Piculs
1899, Dec. 31 86,534.18 43,934
1900, Apr. 30 13,069.97 50,261.78
1900, Dec. 31 67,892.56 71,277
1901, Dec. 31 101,253.31 100,342
1902, Dec. 31 98,074.52 68,880.09
1903, Dec. 31 66,482.49 68,880.09
_________ _________
433,307.03 428,974.07
Lacking 4,332.96
_________ _________
433,307.03 433,307.03
"(c) In 1900, on April 30, Messrs. Warner, Barnes y Co (Ltd.) give credit for 5,485 piculs of hemp, at 16 pesos a picul, when the market price at that time, according to themselves, was P23.78
"First, the defendant shall be advised that it must, within a fixed period, render an account verified by vouchers, of its management of the business of the joint-account partnership with the plaintiff, pertaining to the months from December 1, 1898, to June 29, 1899, and to the twelve months of the year 1903, unless it shall prove in a satisfactory manner that the said partnership began on June 30, 1899, contrary to the averment of the plaintiff supported by evidence that it commenced on December 1, 1898, in which case the said rendering of account shall be restricted to the twelve months of the year 1903, in the accounts of which last period must be included all the property that is found to belong to the said partnership; second, in the examination of the accounts that may be found to’ have been rendered, the parties may allege and prove facts conducive to their revision or approval besides availing themselves of the evidence already adduced at trial; and, third, with respect to the accounts corresponding to the period from June 30, 1899, to December 31, 1902, already approved, the trial court shall proceed in accordance with law, duly considering the errors, omissions, mistakes and fraudulent or deceitful acts that have been alleged or may specifically be alleged in rejecting the said approved accounts, as well as the evidence introduced by both parties, and it shall be careful to decide in its final judgment all the issues raised between the parties in the course of this litigation and to provide such remedies as are proper in regard to their respective claims."cralaw virtua1aw library
The complaint that instituted the suit wherein the above decision was rendered, is contained in the petition dated September 26, 1907, and Aldecoa & Co., in liquidation, alleged therein as a cause of action:jgc:chanrobles.com.ph
"That on December 1, 1898, the plaintiff company became interested in the business of Warner, Barnes & Co. (Ltd.) , in Albay, in the purchase of hemp in the pueblos of Tabaco and Legaspi, and formed with them a joint-account partnership whereby Aldecoa & Co., were to share equally in the gains and losses of the business in Albay; that Warner Barnes & Co. (Ltd.) acted and continued to act as manager (gestora) of said joint-account partnership and as such manager was obliged to render accounts supported by proofs, and to liquidate the business; that defendant not only had not done this, in spite of the demand made upon it but has expressly denied the right of plaintiff to examine the vouchers, contenting itself with forwarding to the latter copies of the entries in defendant’s books, which entries contained errors and omissions that hereinafter will be mentioned; that said entries, moreover, show the partnership to have commenced on June 30, 1899, whereas its operations should have commenced and did commence on December 1, 1898, on which date the joint-account partnership was formed; that, said operations having been closed on December 31, 1903, Warner, Barnes & Co. (Ltd.) , the defendant, has not realized upon the assets of the firm by selling the property which constitutes its capital; that the directors and managers of the defendant company, unlawfully, maliciously, and criminally conspired with the persons who were managing the commercial firm of Aldecoa & Co. during the years 1899, 1900, 1901, 1902, and 1903, to defraud the latter of its interest in the said joint-account partnership, buying the silence of its managers with respect to the operations of the joint-account partnership during the time comprised between December 1, 1898, and June 30, 1899, as well as with respect to the errors and omissions in the accounts relating to the second semester of 1899 and those relating to 1900, 1901, 1902, and 1903; that said fraudulent acts were not known to the partner of the plaintiff firm until the managers who acted in collusion with the managers of the defendant firm had ceased to hold their positions, to wit, until after December 31, 1906; that by reason of this conspiracy to defraud the plaintiff the defendant had been benefited; that the errors and omissions found in the entries of the books kept by the defendant firm as manager of the joint-account partnership are those expressed in detail here below:jgc:chanrobles.com.ph
"(a) It appears that between the 10th of July and the 26th of December, 1899, 43,934 piculs of hemp arrived in Manila for the joint-account partnership, which were purchased in Legaspi and Tabaco at 13 pesos per picul, and, after charging against this hemp excessive expenses for collection, storage, freight, fire, marine, and war insurance, personnel, etc., the defendant, Warner, Barnes & Co., as manager of the joint-account partnership and commission agents of their joint-account partners, claim that they purchased the said hemp for themselves, but do not give the price received from the sale thereof and merely credit it at 13 pesos a picul, when the average market price at that time was 16.50 pesos a picul; defendant thereby injuring plaintiff to the amount of P76,884.50.
"(b) Striking a balance from the amount of hemp debited and that credited, there results a difference of 4,332.96 piculs not credited which, at 24 pesos a picul, the market price at the time, represents an injury to plaintiff amounting to P51,995.52, the said deficit, with respect to the hemp, pertaining to the period beginning with December 31, 1899, in the manner shown by the following table:chanrob1es virtual 1aw library
Invoices &
Dr. Cr.
Piculs Piculs
1899, Dec. 31 86,534.18 43,934
1900, Apr. 30 13,069.97 50,261.78
1900, Dec. 31 67,892.56 71,277
1901, Dec. 31 101,253.31 100,342
1902, Dec. 31 98,074.52 68,880.09
1903, Dec. 31 66,482.49 68,880.09
_________ _________
433,307.03 428,974.07
Lacking 4,332.96
_________ _________
433,307.03 433,307.03
"(c) In 1900, on April 30, Messrs. Warner, Barnes y Co (Ltd.) give credit for 5,485 piculs of hemp, at 16 pesos a picul, when the market price at that time, according to themselves, was P23.78
