G.R. No. L-33580 February 6, 1931MAXIMILIANO SANCHO, plaintiff-appellant, vs.S!RIANO LI"ARRAGA, defendant-appellee.Jose Perez Cardenas and Jose M. Casal for appellant.Celso B. Jamora and Antonio Gonzalez for appellee.ROM#AL$", 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 b the latter of his 50,000 peso investment therein, with interest at 12 per cent per annum form October 15, 1920, with costs, and an other !ust and e"uitable remed against said defendant.The defendant denies generall and specificall all the allegations of the complaint which are incompatible with his special defenses, cross-complaint and counterclaim, setting up the latter and as#ing for the dissolution of the partnership, and the pament to him as its manager and administrator of $500 monthl from October 15, 1920, until the final dissolution, with interest, one-half of said amount to be charged to the plaintiff. %e also pras for an other !ust and e"uitable remed.The &ourt of 'irst (nstance of )anila, having heard the cause, and finding it dul proved that the defendant had not contributed all the capital he had bound himself to invest, and that the plaintiff haddemanded that the defendant li"uidate the partnership, declared it dissolved on account of the e*piration of the period for which it was constituted, and ordered the defendant, as managing partner, to proceed without dela to li"uidate it, submitting to the court the result of the li"uidation together with the accounts and vouchers within the period of thirt das from receipt of notice of said!udgment, without costs.The plaintiff appealed from said decision ma#ing the following assignments of error+1. (n holding that the plaintiff and appellant is not entitled to the rescission of the partnership contract, ,*hibit -, and that article 112. of the &ivil &ode is not applicable to the present case.2. (n failing to order the defendant to return the sum of $50,000 to the plaintiff with interest from October 15, 1920, until full paid./. (n dening the motion for a new trial.(n the brief filed b counsel for the appellee, a preliminar "uestion is raised purporting to show that this appeal is premature and therefore will not lie. The point is based on the contention that inasmuch as the li"uidation ordered b the trial court, and the conse"uent accounts, have not been made and submitted, the case cannot be deemed terminated in said court and its ruling is not et appealable. (n support of this contention counsel cites section 12/ of the &ode of &ivil $rocedure, and the decision of this court in the case of Natividad vs. Villarica 0/1 $hil., 1122.This contention is well founded. 3ntil the accounts have been rendered as ordered b the trial court, and until the have been either approved or disapproved, the litigation involved in this action cannot be considered as completel decided4 and, as it was held in said case of 5atividad vs .6illarica, also with reference to an appeal ta#en from a decision ordering the rendition of accounts following the dissolution of partnership, the appeal in the instant case must be deemed premature.7ut even going into the merits of the case, the affirmation of the !udgment appealed from is inevitable. (n view of the lower court8s findings referred to above, which we cannot revise because the parol evidence has not been forwarded to this court, articles 19:1 and 19:2 of the &ivil &ode have been properl applied. Owing to the defendant8s failure to pa to the partnership the whole amount which he bound himself to pa, he became indebted to it for the remainder, with interest and an damages occasioned thereb, but the plaintiff did not thereb ac"uire the right to demand rescission of the partnership contract according to article 112. of the &ode. This article cannot be applied to the case in "uestion, because it refers to the resolution of obligations in general, whereas article 19:1 and 19:2 specificall refer to the contract of partnership in particular. -nd it is a well #nown principle that special provisions prevail over general provisions.7 virtue of the foregoing, this appeal is hereb dismissed, leaving the decision appealed from in full force, without special pronouncement of costs. ;o ordered.Avancea, C.J., Johnson, Street, Malcolm, Villamor, strand, Johns and Villa!"eal, JJ., conc#r.G.R. No. L-%5%%1 &u'e (6, 1939MORA LC)RIC CO., INC., petitioner, vs.*A#LINO MA)IC a'+ ,NI)A -#IOG# !I#$A $ $L ROSARIO, respondents.Claro M. "ecto and John ". Mcfie for petitioner.Gi$$s and Mc%ono#&h for respondents.A!ANC.A, C.J.:$aulino )atic obtained from the &it of )anila the concession to provide the lighting sstem of the )anila 5orth and ;outh &emeteries on -ll ;aint8s on ;uret &o.)atic thereafter transferred his rights to said concession to 7enita ?uiogue, authori>ing her to enter into a contract with )ora ,lectric &o., (nc., to ma#e the installation and to pa the $:,11/ to the &it of )anila with the mone to be collected from the installations.7enita ?uiogue entered into this contract with )ora ,lectric &o., (nc., each part binding itself to contribute the necessar labor and material which the latter ma be unable to put up, and dividing the profits between them after deducting therefrom all the necessar e*penses for labor, materials, cost of the current and the amount of $:,11/ which should be paid to the cit, both parties also binding themselves, for this purpose, to report the e*penses which each might have incurred.The business was a failure because it did not ield the e*pected profit.'or failure to pa the amount of $:,11/ owing to the &it of )anila for the concession, =u>on ;uret &o., had to ma#e good the said amount. =u>on ;uret &o., thereupon sued $aulino )atic and 7enita ?uiogue for the recover of this amount. $aulino )atic and 7enita ?uiogue, in turn, filed the present action against )ora ,lectric &o., (nc., to recover from the latter the amount of $:,11/ to which the were sentenced to pa in the case commenced against them b =u>on ;uret &o. The &ourt of -ppeals, affirming the !udgment of the &ourt of 'irst (nstance, sentenced )ora ,lectric &o., (nc., to pa $aulino )atic and 7enita ?uiogue the amount of $:,11/, minus that of $2/5 which had alread been paid on account of the former, or $:,51: with interest thereon at 12 per cent per annum, plus : per cent of this amount as attorne8s fee.)ora ,lectric &o., (nc., has appealed this case to this court of certiorari. The &ourt of -ppeals, reling upon the evidence oral and documentar, held that )ora ,lectric &o., (nc., bound itself in its contract with 7enita ?uiogue to pa the &it of )anila the $:,11/. 3nable to review this evidence, we have to decide this appeal on the basis of this finding of the &ourt of -ppeals. %aving underta#ento pa this amount to the &it of )anila, )ora ,lectric &o., (nc., is under a dut to reimburse whoever made good the amount for it, namel, $aulino )atic and 7enita ?uiogue.%owever, )ora ,lectric &o., (nc., also contends that, at all events, 7enita ?uiogue should share in the pament of this amount to the &it of )anila. (t alleges that the contract entered into between them is a civil partnership. (t then invo#es the provisions of the &ivil &ode regarding the distribution of the profits and losses between the partners.This "uestion, however, is not raised in this case. (t properl pertains to the li"uidation of the partnership and the distribution of the profits and losses, which are not here at issue. The amount now sought to be recovered is not claimed as loss or profit, but as the contribution which )ora ,lectric &o., (nc., bound itself to ma#e to the partnership and which it was under a dut to pa, although it was paid instead b )atic and ?uiogue. The li"uidation of the partnership is not now sought. (ndeed, there is no reason for such li"uidation. @hile it is mentioned in the appealed decision that the business produced $9,9/9..0, it does not appear that the parties have made a report, as the have agreed to do, of the e*penses incurred b each, and it is not possible to determine whether there was a profit or loss and what is the e*tent thereof and the measure of the respective liabilit or benefit.-s to the interest on the amount of $:,51:, )atic and ?uiogue having been sentenced to pa it, it constitutes damages suffered b them due to the breach b )ora ,lectric &o., (nc., of the obligation it assumed to pa the &it the amount of the concession. The same is true with respect to the !udgment to pa : per cent on the amount of $:,51:.@herefore, the !udgment of the &ourt of -ppeals is affirmed, with the costs to the petitioner. ;o ordered.Villa!"eal, 'mperial, %iaz, (a#rel, and Concepcion, JJ., conc#r.G.R. No. 13%559 $e/e0ber 9, 1999AN)ONIA )ORRS a11213e+ by 4er 4u1ba'+, ANGLO )ORRS5 a'+ M)RIA ,ARING, petitioners, vs.CO#R) OF A**ALS a'+ MAN#L )ORRS, respondents. *ANGANI,AN, J.:&ourts ma not e*tricate parties from the necessar conse"uences of their acts. That the terms of a contract turn out to be financiall disadvantageous to them will not relieve them of their obligations therein. The lac# of an inventor of real propert will not ipso facto release the contracting partners from their respective obligations to each other arising from acts e*ecuted in accordance with their agreement.)he CaseThe $etition for Aeview on Certiorari before us assails the )arch 5, 199: &hua is the one entitled to the insurance proceeds and not Tai Tong &huache K &ompan.This &ourt cannot fault petitioner for the above erroneous interpretation of the decision appealed from considering the manner it was written. 5 -s correctl pointed out b respondent insurance commission in their comment, the decision did not pronounce that it was -rsenio =ope> &hua who has insurable interest over the insured propert. $erusal of the decision reveals however that it readil absolved respondent insurance compan from liabilit on the basis of the commissioner8s conclusion that at the time of the occurrence of the peril insured against petitioner as mortgagee had no more insurable interest over the insured propert. (t was based on the inference that the credit secured b the mortgaged propert was alread paid b the $alomos before the said propert was gutted down b fire. The foregoing conclusion was arrived at on the basis of the certification issued b the then &ourt of 'irst (nstance of &hua standsas the complainant and not petitioner Tai Tong &huache K &ompan.@e find the petition to be impressed with merit. (t is a well #nown postulate that the case of a part isconstituted b his own affirmative allegations. 3nder ;ection 1, Aule 1/1 6 each part must prove his own affirmative allegations b the amount of evidence re"uired b law which in civil cases as in the present case is preponderance of evidence. The part, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of presenting at the trial such amount of evidence as re"uired b law to obtain favorable !udgment. 6 Thus, petitioner who is claiming a right over the insurance must prove its case. =i#ewise, respondent insurance compan to avoid liabilit under the polic b setting up an affirmative defense of lac# of insurable interest on the part of the petitioner must prove its own affirmative allegations.(t will be recalled that respondent insurance compan did not assail the validit of the insurance polic ta#en out b petitioner over the mortgaged propert. 5either did it den that the said propert was totall ra>ed b fire within the period covered b the insurance. Aespondent, as mentioned earlier advanced an affirmative defense of lac# of insurable interest on the part of the petitioner that before the occurrence of the peril insured against the $alomos had alread paid their credit due the petitioner. Aespondent having admitted the material allegations in the complaint, has the burden of proof to show that petitioner has no insurable interest over the insured propert at the time the contingenc too# place. 3pon that point, there is a failure of proof. Aespondent, it will be noted, e*erted no effort to present an evidence to substantiate its claim, while petitioner did. 'or said respondent8s failure, the decision must be adverse to it.%owever, as adverted to earlier, respondent (nsurance &ommission absolved respondent insurance compan from liabilit on the basis of the certification issued b the then &ourt of 'irst (nstance of &hua stands as the complainant and not Tai Tong &huache. 'rom said evidence respondent commission inferred that the credit e*tended b herein petitioner to the $alomos secured b the insured propert must have been paid. ;uch is a glaring error which this &ourt cannot sanction. Aespondent &ommission8s findings are based upon a mere inference.The record of the case shows that the petitioner to support its claim for the insurance proceeds offered as evidence the contract of mortgage 0,*h. 12 which has not been cancelled nor released. (t has been held in a long line of cases that when the creditor is in possession of the document of credit, he need not prove non-pament for it is presumed. 8 The validit of the insurance polic ta#en b petitioner was not assailed b private respondent. )oreover, petitioner8s claim that the loan e*tended to the $alomos has not et been paid was corroborated b ->ucena $alomo who testified that the are still indebted to herein petitioner.9$ublic respondent argues however, that if the civil case reall stemmed from the loan granted to ->ucena $alomo b petitioner the same should have been brought b Tai Tong &huache or b its representative in its own behalf. 'rom the above premise respondent concluded that the obligation secured b the insured propert must have been paid.The premise is correct but the conclusion is wrong. &iting Aule /, ;ec. 2 10 respondent pointed out that the action must be brought in the name of the real part in interest. @e agree. %owever, it should be borne in mind that petitioner being a partnership ma sue and be sued in its name or b its dul authori>ed representative. The fact that -rsenio =ope> &hua is the representative of petitioner is not "uestioned. $etitioner8s declaration that -rsenio =ope> &hua acts as the managing partner of the partnership was corroborated b respondent insurance compan. 11 Thus &hua as the managing partner of the partnership ma e*ecute all acts of administration 1( including the right to sue debtors of the partnership in case of their failure to pa their obligations when it became due and demandable. Or at the ver least, &hua being a partner of petitioner Tai Tong &huache K &ompan is an agent of the partnership. 7eing an agent, it is understood that he acted for and in behalf of the firm. 13 $ublic respondent8s allegation that the civil case flied b -rsenio &hua was in his capacit as personal creditor ofspouses $alomo has no basis.The respondent insurance compan having issued a polic in favor of herein petitioner which polic was of legal force and effect at the time of the fire, it is bound b its terms and conditions. 3pon its failure to prove the allegation of lac# of insurable interest on the part of the petitioner, respondent insurance compan is and must be held liable.(5 6(,@ O' T%, 'OA,BO(5B, the decision appealed from is hereb ;,T -;(ation thereof b his copartner in reliance upon his s#ill and abilit or otherwise. -nd here we have to hold once again that it is not the plaintiff who, under the articles of partnership, should obtain and prove the consent of %ill, but the latter8s partner, &eron, should he file a complaint against the partnership for compliance with the contract4 but in the present case, it is a third person, the plaintiff, who as#s for it. @hile the said presumption stands, the plaintiff has nothing to prove.$assing now to another aspect of the case, had &eron in an wa stated to the appellant at the time of the e*ecution of the contract, or if it could be inferred b his conduct, that he had the consent of %ill, and should it turn out later that he did not have such consent, this alone would not annul the contract !udging from the provisions of article 1/0 of the &ode of &ommerce reading as follows+5o new obligation shall be contracted a&ainst the 7ill of one of the managing partners, should he have e*pressl stated it4 but if, however, it should be contracted it shall not be annulled for this reason, and shall have its effects without pre!udice to the liabilit of the partner or partners who contracted it to reimburse the firm for an loss occasioned b reasonthereof. 0,mphasis supplied.23nder the afore"uoted provisions, when, not onl without the consent but against the will of an of the managing partners, a contract is entered into with a third person who acts in good faith, and the transaction is of the #ind of business in which the partnership is engaged, as in the present case, said contract shall not be annulled, without pre!udice to the liabilit of the guilt partner.The reason or purpose behind these legal provisions is no other than to protect a third person who contracts with one of the managing partners of the partnership, thus avoiding fraud and deceit to which he ma easil fall a victim without this protection which the &ode of &ommerce wisel provides.(f we are to interpret the articles of partnership in "uestion b holding that it is the obligation of the third person to in"uire whether the managing copartner of the one with whom he contracts has givenhis consent to said contract, which is practicall casting upon him the obligation to get such consent, this interpretation would, in similar cases, operate to hinder effectivel the transactions, a thing not desirable and contrar to the nature of business which re"uires promptness and dispatch one the basis of good faith and honest which are alwas presumed.(n view of the foregoing, and sustaining the other views e*pressed in the decision, the motion is denied. ;o ordered.Avancea, C. J., Villa!"eal, 'mperial, %iaz, (a#rel, and Moran, JJ., conc#r.G.R. No. L-116(%&a'uary (1, 1918. M. ,ACHRACH, plaintiff-appellee, vs.@LA *RO)C)ORA@, ) AL., defendants-appellants.Vicente *oz for appellants. A. J. B#r;e for appellee.S)R), J.9(n the ear 191/, the individuals named as defendants in this action formed a civil partnership, calledD=a $rotectora,D for the purpose of engaging in the business of transporting passengers and freight at =aoag, (locos 5orte. (n order to provide the enterprise with means of transportation, )arcelo 7arba, acting as manager, came to )anila and upon Cune 2/, 191/, negotiated the purchase of two automobile truc#s from the plaintiff, ,. ). 7achrach, for the agree price of $19,500. %e paid the sum of /,000 in cash, and for the balance e*ecuted promissor notes representing the deferred paments. These notes provided for the pament of interest from Cune 2/, 191/, the date of the notes, at the rate of 10 per cent per annum. $rovision was also made in the notes for the pament of25 per cent of the amount due if it should be necessar to place the notes in the hands of an attorne for collection. Three of these notes, for the sum of $/,/15 each, have been made the sub!ect of the present action, and there are e*hibited with the complaint in the cause. One was signed b )arcelo 7arba in the following manner+$. $. =a $rotectora 7 )arcelo 7arba )arcelo 7arba.The other two notes are signed in the same wa with the word D7D omitted before the name of )arcelo 7arba in the second line of the signature. (t is obvious that in thus signing the notes )arcelo7arba intended to bind both the partnership and himself. (n the bod of the note the word D(D 0.o2 instead of DweD 0nosotros2 is used before the words Dpromise to paD ed from this sale was $1,000. This was credited unpaid. To recover this balance, together with the sum due for additional purchases, the present action was instituted in the &ourt of 'irst (nstance of the cit of )anila, upon )a 29, 191., against D=a $rotectoraD and the five individuals )arcelo 7arba, 5icolas ;egundo, -ntonio -diarte, (gnacio 'lores, and )odesto ;errano. 5o "uestion has been made as to the propriet of impleading D=a $rotectoraD as if it were a legal entit. -t the hearing, !udgment was rendered against all of the defendants. 'rom this !udgment no appeal was ta#en in behalf either of D=a $rotectoraD or )arcelo 7arba4 and their liabilit is not here under consideration. The four individuals who signed the document to which reference has been made, authori>ing 7arba to purchase the two truc#s have, however, appealed and assigned errors. The "uestion here to be determined is whether or not theseindividuals are liable for the firm debts and if so to what e*tent.The amount of indebtedness owing to the plaintiff is not in dispute, as the principal of the debt is agreed to be $1,0/1. Of this amount it must now be assumed, in view of the finding of the trial court, from which no appeal has been ta#en b the plaintiff, that the unpaid balance of the notes amounts to $.,121, while the remainder 0$2,9192 represents the amount due for automobile supplies and accessories.The business conducted under the name of D=a $rotectoraD was evidentl that of a civil partnership4 and the liabilit of the partners to this association must be determined under the provisions of the &ivil &ode. The authorit of )arcelo 7arba to bind the partnership, in the purchase of the truc#s, is full established b the document e*ecuted b the four appellants upon Cune 12, 191/. The transaction b which 7arba secured these truc#s was in conformit with the tenor of this document. The promissor notes constitute the obligation e*clusivel of D=a $rotectoraD and of )arcelo 7arba4 and the do not in an sense constitute an obligation directl binding on the four appellants. Their liabilit is based on the fact that the are members of the civil partnership and as such are liable for its debts. (t is true that article 199: of the &ivil &ode declares that a member of a civil partnership is not liable in solid#m 0solidariamente2 with his fellows for its entire indebtedness4 but it results from this article, in connection with article 11/1 of the &ivil &ode, that each is liable with the others 0mancomunadamente2 for his ali"uot part of such indebtedness. -nd so it has been held b this court. 0&o-$itco vs. Julo, : $hil. Aep., 5...2The &ourt of 'irst (nstance seems to have founded its !udgment against the appellants in part upon the idea that the document e*ecuted b them constituted an authorit for )arcelo 7arba to bind them personall, as contemplated in the second clause of article 199: of the &ivil &ode. That cause sas that no member of the partnership can bind the others b a personal act if the have not given him authorit to do so. @e thin# that the document referred to was intended merel as an authorit to enable 7arba to bind the partnership and that the parties to that instrument did not intend thereb to confer upon 7arba an authorit to bind them personall. (t is obvious that the contract which 7arbain fact e*ecuted in pursuance of that authorit did not b its terms profess to bind the appellants personall at all, but onl the partnership and himself. (t follows that the four appellants cannot be held to have been personall obligated b that instrument4 but, as we have alread seen, their liabilit rests upon the general principles underling partnership liabilit.-s to so much of the indebtedness as is based upon the claim for automobile supplies and accessories, it is obvious that the document of Cune 12, 191/, affords no authorit for holding the appellants liable. Their liabilit upon this account is, however, no less obvious than upon the debt incurred b the purchase of the truc#s4 and such liabilit is derived from the fact that the debt was lawfull incurred in the prosecution of the partnership enterprise.There is no proof in the record showing what the agreement, if an, was made with regard to the form of management. 3nder these circumstances it is declared in article 1995 of the &ivil &ode that all the partners are considered agents of the partnership. 7arba therefore must be held to have had authorit to incur these e*penses. 7ut in addition to this he is shown to have been in fact the president or manager, and there can be no doubt that he had actual authorit to incur this obligation.'rom what has been said it results that the appellants are severall liable for their respective shares of the entire indebtedness found to be due4 and the &ourt of 'irst (nstance committed no error in giving !udgment against them. The amount for which !udgment should be entered is $1,0/1, to whichshall be added 012 interest at 10 per cent per annum from Cune 2/, 191/, to be calculated upon the sum of $..1214 022 interest at 9 per cent per annum from Cul 21, 1915, to be calculated upon the sum of $2,9914 0/2 the further sum of $1,0/0.25, this being the amount stipulated to be paid b wa of attorne8s fees. %owever, it should be noted that an propert pertaining to D=a $rotectoraD should first be applied to this indebtedness pursuant to the !udgment alread entered in this case in the court below4 and each of the four appellants shall be liable onl for the one-fifth part of the remainderunpaid.=et !udgment be entered accordingl, without an e*press finding of costs of this instance. ;o ordered.Arellano, C.J., )orres, Ara#llo, Malcolm, and Avancea, JJ., concur.G.R. No. L-5(36 &a'uary 10, 1910*$RO MAR)IN", plaintiff-appellee, vs.ONG *ONG CO a'+ ONG LA7, defendants. ONG *ONG CO., appellant.*ernando de la Cantera for appellant. +Brien and %e=itt for appellee.ARLLANO, C.J.:On the 12th of ed to emplo the plaintiff and to contract for his services, because we are of opinion that the authorit to contract for the emploment of the plaintiff was clearl conferred upon -nsuategui b the terms of this letter of instructions.These transactions, which were introduced into the record, were dated in )anila, )a 2/, 190/, and among other provisions contain the following+,s tambien derroche los sueldos "ue dicen pagan a los fa&inantesel e*ceso de gente para poco traba!o4 debe tenerse la gente necesariapagar lo ra>onable,al "ue no le convenga "ue se marche. osmaderas de todas clases,a sueldo le gente "ue se emplea para hacer los $arraconesotros traba!os "ue sucriterio le dicte, pero no permitiendo por ningun concepto "ue abusen.0The salaries which it is said are paid to the faginantes and the e*cess of emploees for little wor# is also a waste. The necessar emploees should be #ept and paid reasonabl, and he who is not needed FsatisfiedG, let him go. The cutting of logs and wood of all #inds ought to bedone b contract, and the persons emploed in digging the barracones and other wor# at wages which our good !udgment ma dictate, but on account permitting abuses.2-nd at the conclusion of the letter of instructions, we find the following+=o "ue a"ui no va anotado, esperamos lo subsane 6d. con su buen criterio,le recomendamos por ultimo nos tenga al corriente de todo.0@e trust ou to correct and suppl 0s#$sanar2 anthing which is not noted herein, in accordance with our good !udgment, and finall we urgentl re"uest that ou #eep us informed of everthing.2Other provisions of the letter of instructions e*pressl authori>ed -nsuategui, as the local manager of the defendant compan at the mines, to discharge emploees who did not prove satisfactor, and leave no room for doubt that he was dul authori>ed to represent the compan at the mines so far asthis was necessar for their proper local management.l a7phil .netTa#ing into consideration the fact that the mines of the defendant compan are located upon an island some two das8 distance b steamer from the office of the compan at )anila, that the onl communication therewith was b mail a few times per month, and that in the ver nature of the enterprise, it was necessar, in order that the local manager might successfull perform his duties, toconfer upon him wide scope in the emploment and discharge of labor, we thin# that there can be nodoubt that Benaro -nsuategui was full and e*pressl authori>ed b the terms of this letter of instructions to enter into the alleged contract of emploment with the plaintiff on behalf of the defendant compan4 and the evidence of record establishing the fact that he did so, and that the plaintiff wor#ed for the compan for the period set out in the findings of the trial court, we are of opinion that the trial court properl rendered !udgment in favor of the plaintiff and against the defendant for the value of the services rendered.The plaintiff not having appealed from the !udgment of the trial court dening him the alleged contract value of the services rendered, and the evidence of record full sustaining the findings as tothe reasonable value of these services, the !udgment of the trial court should be and is hereb affirmed, with the costs of this instance against the defendant. ;o ordered.Arellano, C.J., )orres, Mapa, =illard, and )race., JJ., conc#r.G.R. No. L-30(5 NoAe0ber (3, 1906SI-,OCO, plaintiff-appellee, vs.7A* )NG, defendant-appellant.Marcelo Carin&al for appellant. )hos. (. McGirr for appellee. MA*A, J.:This is an action b the plaintiff to recover from the defendant the sum of $1,..2.95, alleged to be due him from the latter. The court below rendered !udgment in favor of the plaintiff for the aforesaid sum and legal interest thereon at the rate of 9 per cent per annum from the 25th of )arch, 1905, with costs against the defendant, who e*cepted to the said !udgment, made a motion for a new trial on the ground that the findings of fact contained in the said !udgment were plainl and manifestl against the weight of the evidence, and has brought the case to this court b a bill of e*ceptions.The evidence shows that for a period of three ears, more or less, the plaintiff had been furnishing tothe defendant native cloth for the latter8s store in the cit of )anila. The goods were at first furnished on credit, but the business relations of the parties caused entirel in 190.. The defendant had a partner b the name of Japsuan, who was the manager of the business. The defendant introduced him to the plaintiff as such manager, and told him that Japsuan had authorit from him to receive thecloth, and that the value thereof should be charged to his, the defendant8s account, and in fact the cloth was, as a rule, received b Japsuan from the plaintiff. (t became necessar for Japsuan to return to &hina in 1902 on account of ill health and a li"uidation of the accounts between the plaintiff and the defendant was made in ed is the Beneral %enr @. =awton $ost, 5o. 1. On the 1st da of )arch, 190/, a contract of lease of parts of a certain buildings in the cit of )anila was signed b @.@. =ewis, ,.&. ;tovall, and 6.O., %aes, as trustees of the -pache Tribe, 5o. 1, (mproved Order of Aed )en, as lessors, and -lbert ,. )c&abe, citing for and on behalf of =awton $ost, 6eteran -rm of the $hilippines as lessee. The lease was forthe term of two ears commencing 'ebruar 1, 90/, and ending 'ebruar 2:, 1905. The =awton $ost occupied the premises in controvers for thirteen months, and paid the rent for that time. (t them abandoned them and this action was commenced to recover the rent for the une*pired term. Cudgment was rendered in the court below on favor of the defendant )c&abe, ac"uitting him of the complaint. Cudgment was rendered also against the 6eteran -rm of the $hilippines for $1,1/:.50, and the costs. 'rom this !udgment, the last named defendant has appealed. The plaintiff did not appeal from the !udgment ac"uitting defendant )c&abe of the complaint.(t is claimed b the appellant that the action can not be maintained b the plaintiff, The Breat &ouncilof the 3nited ;tates of the (mproved Order of Aed )en, as this organi>ation did not ma#e the contract of lease.(t is also claimed that the action can not be maintained against the 6eteran -rm of the $hilippines because it never contradicted, either with the plaintiff or with -pach Tribe, 5o. 1, and never authori>ed anone to so contract in its name.@e do not find it necessar to consider the first point because we thin# the contention of the appellant on the second point must be sustained.(t is difficult to determine the e*act nature of the defendant organi>ation. (t is of course not a mercantile partnership. There is some doubt as to whether it is a civil partnership, in view of the definition of the term in article 1995 of the &ivil &ode. That article is as follows+$artnership is a contract b which two or more persons bind themselves to contribute mone,propert, or industr to a common fund, with the intention of dividing the profits among themselves.(t seems to be the opinion of the commentators that where the societ is not constituted for the purpose of gain. it does not fall within this article of the &ivil &ode. ;uch an organi>ation is full covered b the =aw of -ssociations of 1::1, but that law was never e*tended to the $hilippine (slands. -ccording to some commentators it would be governed b the provisions relating to the communit of propert. %owever, the "uestions thus presented we do not find necessar to , and to not resolve. The view most favorable to the appellee is the one that ma#es the appellant a civil partnership. -ssuming that is such, and is covered b the provisions of title :, boo# . of the &ivil &ode, it is necessar for the appellee to prove that the contract in "uestion was e*ecuted b some authori>ed to so b the 6eteran -rm of the $hilippines.-rticle 1995 of the &ivil &ode provides as follows+;hould no agreement have been made with regard to the form of management, the followingrules shall be observed+1 -ll the partners shall be considered as agents, and whatever an one of them ma do b himself shall bind the partnership4 but each one ma oppose the act of the others before thema have produced an legal effect.One partner, therefore, is empowered to contract in the name of the partnership onl when the articles of partnership ma#e no provision for the management of the partnership business. (n the case at bar we thin# that the articles of the 6eteran -rm of the $hilippines do so provide. (t is true that an e*press disposition to that effect is not found therein, but we thin# one ma be fairl deducedfrom the contents of those articles. The declare what the duties of the several officers are. (n these various provisions there is nothing said about the power of ma#ing contracts, and that facult is not e*pressl given to an officer. @e thin# that it was, therefore, reserved to the department as a whole4that is, that in an case not covered e*pressl b the rules prescribing the duties of the officers, the department were present. (t is hardl conceivable that the members who formed this organi>ation should have had the intention of giving to an one of the si*teen or more persons who composed thedepartment the power to ma#e an contract relating to the societ which that particular officer saw fit to ma#e, or that a contract when so made without consultation with, or #nowledge of the other members of the department should bind it. @e therefore, hold, that no contract, such as the one in "uestion, is binding on the 6eteran -rm of the $hilippines unless it was authori>ed at a meeting of the department. 5o evidence was offered to show that the department had never ta#en an such action. (n fact, the proof shows that the transaction in "uestion was entirel between -pache Tribe, 5o. 1, and the =awton $ost, and there is nothing to show that an member of the department ever #new anthing about it, or had anthing to do with it. The liabilit of the =awton $ost is not presented in this appeal.Cudgment against the appellant is reversed, and the 6eteran -rm of the $hilippines is ac"uitted of the complaint. 5o costs will be allowed to either part in this court. -fter the e*piration of twent daslet !udgment be rendered in accordance to the lower court for proper action. ;o ordered.Arellano, C.J., )orres, Mapa, Johnson and )race., JJ., concur. Carson, J., did not sit in this case.G.R. No. L-118%0$e/e0ber 10, 1963AN)ONIO C. GO-#IOLA7, ) AL., plaintiffs-appellants, vs.=ASHING)ON ". S7CI*, ) AL., defendants-appellees.Nor$erto J. 5#is#m$in& and S.cip, Salazar and Associates for defendants!appellees.Jose C. Cala.co for plaintiffs!appellants..RS O L # ) I O NR7S, &.,.L., J.:The matter now pending is the appellant8s motion for reconsideration of our main decision, wherein we have upheld the validit of the sale of the lands owned b the partnership Bo"uiola K Tan ;in -n, made in 19.9 b the widow of the managing partner, Tan ;in -n 0,*ecuted in her dual capacit as -dministratri* of the husband8s estate and as partner in lieu of the husband2, in favor of the buers @ashington ;cip and 7ett =ee for the following consideration+&ash paid $/1,000.00ed+ Dto engage in real estate business, either b $#.in& and sellin& real estateD. The -rticles of co-partnership, in fact, e*pressl provided that+(6. The ob!ect and purpose of the copartnership are as follows+1. To engage in real estate business, either b buing and selling real estates4 to subdivide real estates into lots for the purpose of leasing and selling them.40c2 That the properties sold were not part of the contributed capital 0which was in cash2 but land precisel ac"uired to be sold, although sub!ect to a mortgage in favor of the original owners, from whom the partnership had ac"uired them.@ith these points firml in mind, let us turn to the points insisted upon b appellant.(t is first averred that there is Dnot one iota of evidenceD that Iong &hai $in managed and retained possession of the partnership properties. ;uffice it to point out that appellant Bo"uiola himself admitted that E... )r. Ju ,ng =ai as#ed me if ( can !ust let )rs. Iong &hai $in contin#e to mana&e the properties 0as2 she had no other means of income. )hen ' said, because ( wanted to help )rs. Iong &hai $in, she could !ust do it and besides ( am not interested in agricultural lands. ' allo7ed her to ta;e care of the properties in order to help her and because ( believe in Bod and E wanted to help her.? E ;o the answer to m "uestion is ou did not ta#e an stepsU- E ( did not.? E -nd this conversation which ou had with )rs. Ju ,ng =ai was few months after19.5U- E (n the ear 19.5. 0,mphasis supplied2.The appellant subse"uentl ratified this testimon in his deposition of /0 Cune 1959, pages :-9, wherein he stated+that plantation was being occupied at that time $. the 7ido7, )rs. Tan ;in -n, and of course the are receiving A#iet a lot $enefit from the plantation.., 19:52. There is no evidence that the original buers, @ashington ;cip and 7ett =ee, were without independent means to purchase the propert. That the Jutivos should be willing to e*tend credit to them, and not to appellant, is neither illegal nor immoral4 at the ver least, these buers did not have a record of inveterate defaults li#e the partnership DTan ;in -n K Bo"uiolaD.-ppellant see#s to create the impression that he was the victim of a conspirac between the Jutivo firm and their component members. 7ut no proof is adduced. (f he was such a victim, he could have easil defeated the conspirators b raising mone and paing off the firm8s debts between 19.5 and 19.94 but he did not4 he did not even care to loo# for a purchaser of the partnership assets. @ere it true that the conspirac to defraud him arose 0as he claims2 because of his refusal to sell the lands when in 19.5 Ju Ihe Thai as#ed him to do so, it is certainl strange that the conspirators should wait . ears, until 19.9, to have the sale effected b the widow of Tan ;in -n, and that the sale should have been routed through the probate court ta#ing cogni>ance of Tan ;in -n8s estate, all of which increased the ris# that the supposed fraud should be detected.5either was there an anomal in the filing of the claims of Jutivo and ;ing Jee &uan K &o., 0as subrogees of the 7anco %ipotecario2 in proceedings for the settlement of the estate of Tan ;in -n. This for two reasons+ *irst, Tan ;in -n and the partnership DTan ;in -n K Bo"uiolaD were solidar. 0Coint and several2debtors 0,*hibits D5D, mortgage to the 7anco %ipotecario2, and Aule:1, section 9 is the effect that+@here the obligation of the decedent is 6oint and several with another debtor, the claim shall $e filed against the decedent as if he 7ere the onl. de$tor, without pre!udice to the right of the estate to recover contribution from the other debtor. 0,mphasis supplied2.Secondl., the solidar obligation was guaranteed b a mortgage on the properties of the partnership and those of Tan ;im -n personall, and a mortgage is indivisible, in the sense that each and ever parcel under mortgage answers for the totalit of the debt 0&iv. &ode of 1::9, -rticle 1:904 5ew &ivil&ode, -rt. 20:92.- final and conclusive consideration+ The fraud charged not being one used to obtain a part8s consent to a contract 0i.e., not being deceit or dol#s in contrahendo2, if there is fraud at al, it can onlbe a fra#d of creditorsthat gives rise to a rescission of the offending contract. 7ut b e*press provision of law 0-rticle 129., &ivil &ode of 1::94 -rticle 1/:/, 5ew &ivil &ode2 Dthe action for rescission is subsidiar4 it can not be instituted e*cept when the part suffering damage has no otherlegal means to obtain reparation for the sameD. ;ince there is no allegation, or evidence, that Bo"uiola can not obtain reparation from the widow and heirs of Tan ;in -n, the present suit to rescind the sale in "uestion is not maintainable, even if the fraud charged actuall did e*ist.$A,)(;,; &O5;(