1. COPARTNERSHIP; DISSOLUTION; ASSUMPTION OF OBLIGATIONS. — The copartnership Oquiñena & co. having been dissolved, its creditors and shareholders began organizing its successor, Oquiñena & Co. (Ltd.) . On August 5, 1914, Oquiñena & Co. (Ltd.) being duly organized, on August 29, 1914, the formal transfer of all assets and business of Oquinena & Co. to Oquiñena & Co. (Ltd.) was effected. In the articles of copartnership of the new company, Oquiñena & Co. (Ltd.) as well as in said transfer of all Oquinena & Co.’s assets and business, it is made very clear that Oquiñena & Co. (Ltd.) has assumed all the obligations of the Oquiñena & Co. As defendant in this case Oquiñena & Co. (Ltd.) appears voluntarily in order to assume the obligations of Oquiñena & Co. Held: That in face and in law Oquiñena & Co. has not existed since the organization of Oquiñena & Co. (Ltd.) , that there is no reason whatever whereby the former should be declared liable instead of the latter which has assumed in good faith and voluntarily all obligations and rights aforesaid.

Juan I. de Aldecoa, a resident of the municipality of Surigao, Province of Surigao, had there a going business and maintained mercantile relations with Oquiñena & Co. in Cebu. On July 30, 1913, Juan I. de Aldecoa died, and in September of the same year Anastacio I. de Aldecoa was appointed administrator of his estate. At that time Anastacio I. de Aldecoa was also the manager in Cebu of Oquiñena & Co. On February 4, 1914, Anastacio I. de Aldecoa died, having committed suicide, and in April of the same year Ramon Aboitiz was appointed in his place as administrator of the estate of I. de Aldecoa.

For the first cause of action the plaintiff seeks to recover from the defendants the sum of P9,011.58, with interest at the rate of 8 percent per annum beginning on February 22, 1913; and for the second cause of action, the sum of P5,000, with legal interest beginning on February 5, 1915, the time that the complaint was filed.

At the death of Juan I. de Aldecoa, Anastacio I. de Aldecoa, at that time his administrator, collected from the New York Life Insurance Co. the sum of P9,011.58 the amount of Juan I. de Aldecoa’s life insurance. On November 22, 1913, Anastacio I. de Aldecoa deposited said sum with Oquiñena & Co. at 8 percent interest beginning on that date. Oquiñena & Co. gave the following receipt for this sum:jgc:chanrobles.com.ph

"For P9,011.58.

"We have received from the estate of the deceased, D. Juan I. de Aldecoa, the sum of nine thousand eleven pesos with 58/100 (P9,011.58) as a deposit and with interest at 8 percent per annum, which sum comes from the New York Life Insurance Co. as the settlement of the life insurance of the said Sr. Aldecoa. Said interest will begin to run from the 22nd of last November, the date we received the sum in Manila.

"CEBU, January 21, 1914."cralaw virtua1aw library

After the death of Juan I. de Aldecoa, his business employees in Surigao continued said commercial relations with the Oquiñena & Co. in Cebu, whereby there resulted a balance, in favor of Jose I. de Aldecoa, of P2,312.79, and not P5,000 as is alleged in the complaint.

The court rendered judgment against the defendant Oquiñena & Co. in favor of the plaintiff, for the sum of P9,011.58 with interest at 8 per cent per annum from the 22nd of November, 1913; for the sum of P2,312.79 with interest at 6 percent per annum from the 5th of February, 1915; the court reserved to Oquiñena & Co. the right to demand from the administrator of the estate of the deceased, Juan I. de Aldecoa, the sum of P946.58 as pensions paid by the said defendant company to the family of the deceased in Spain, and absolved the other defendant, Oquiñena & Co. (Ltd.)

Both of the defendants appealed from this decision.

The first error assigned by the appellants as committed by the trial court is that the latter overruled the demurrer interposed to the amended complaint.

This demurrer was based on the ground that the facts alleged in the complaint do not constitute a cause of action in regard to the payment of the sum of P9,011.58. It is said that, if this is in the hands of the defendants as a deposit, the plaintiff cannot withdraw it without a judicial order, inasmuch as in the receipt no fixed time is given. The document is in fact clearly a deposit, according to its terms, without a fixed time. But exactly for being such, the sum deposited may be withdrawn at any time (Articles 1766 of the Civil Code and 306 of the Code of Commerce)

The second error assigned was that the trial court did not take into consideration the motion praying for the inclusion, as true and necessary parties, in addition to Oquiñena & Co. Ltd.) , (the assignee of Oquiñena & Co.) , the sureties of Anastacio Ibanez de Aldecoa, the administrator, of the plaintiff herein. According to the records, the trial court determined this motion by directing the inclusion of Oquiñena & Co. (Ltd.) but not that of the sureties. As the defendant did not except to this resolution therefore we cannot review same at this instance.

The third error assigned is that the trial court did not dismiss the complaint regarding the second cause of action, namely the claim for P5,000 as the consequence of the continuance of the transactions with Oquiñena & Co. after the death of Juan I. de Aldecoa. The trial court reduced this claim to P2,3129. It is alleged there is no evidence sustaining this claim. It appears that in deciding this sum as due to the plaintiff, the trial court, aided by an expert accountant and consented to by counsel for both parties, took into consideration the account books of Oquiñena & Co. We do not find any reason to alter the conclusion reached upon an examination of said books by the trial court.

The fourth error assigned is that the trial court did not accept the expenses consequent to the business established in the Province of Surigao and appertaining to the estate of Juan Ibanez de Aldecoa. In rejecting these expenses the court found same were not business expenses but personal debts of Francisco Manzarraga to Oquiñena & Co. for which the estate of Juan I. de Aldecoa ought not to be responsible. We believe this conclusion is correct.

The last error assigned is that the trial court pronounced judgment against Oquiñena & Co., a company already dissolved, and absolved Oquiñena & Co. (Ltd.) , the successor and assignee of the former.

According to its by-laws, Oquiñena & Co. ought to have been dissolved on July 30, 1912. However, in accordance with the said by-laws this date was extended to July 1, 1913. On April 14, 1914, the creditors and shareholders of the Oquinena & Co. began to organize a company called Oquiñena & Co. (Ltd.) , as a successor to the former. On August 5, 1914, Oquiñena & Co. (Ltd.) was duly organized and on July 29, 1914, the formal transfer of all the assets and business of Oquiñena & Co. to Oquiñena & Co. (Ltd.) was effected. In the articles of copartnership of the new company, Oquiñena & Co. (Ltd.) , as well as in the transference to the same of all the assets and business of the Oquiñena & Co., it was made to appear that Oquiñena & Co. (Ltd.) has assumed all the obligations of Oquiñena & Co. Oquiñena & Co. (Ltd.) appeared at its own request as defendant in this case and appealed in order to assume the obligations of Oquiñena & Co. In fact and in law Oquiñena & Co. has not existed since the organization of Oquiñena & Co. (Ltd.) , and we find no reason why the former should be declared liable in this decision instead of Oquiñena & Co. (Ltd.) to whom has passed all said obligations and rights and by whom voluntarily and in good faith all are assumed.

From the foregoing considerations, we affirm the former judgment in all its parts except regarding the sentencing Oquiñena & Co. and the absolving of Oquiñena & Co. (Ltd.) . We hereby absolve the first and sentence the second to pay to the plaintiff the sum mentioned in the judgment appealed from. No special finding is made as to the costs. So ordered.

Arellano, C.J., Torres, Johnson, Street and Malcolm, JJ., concur.