G.R. No. L-32502




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32502 March 18, 1903 DUHART FRERES Y CIE., plaintiff-appellee, vs. ERNESTO MACIAS Y CONTADOR and E. MACIAS COMMISSION IMPEX CO., defendants-appallants. Harvey & O' Brien and Eugenio Angeles for appellants. C.A. Sobral for appellee. ROMUALDEZ, J.: This appeal taken by the defendants against the judgment of the Court of First Instance of Manila recinding the contract Exhibit A, sentencing them to pay the plaintiffs P5,919.11 with legal interest thereon from the date of the filing of the complaint, with costs, and in addition, sentencing the defendant Ernesto Macias to render a detailed account of the agency's business, is based upon the following assignment of errors as committed by the court below: 1. The trial court erred in not dissolving the attachment upon the films belonging to the defendants because there never existed any writ of attachment in favor of the present plaintiffs Eugenio Duhart and Pedro Duhart. 2. The trial court erred in declaring that the contract Exhibit A or 45 was made by the plaintiffs as managing partners of Duhart Freres & Cie., and in not declaring that said contract was made by and the name of the partnership Duhart Freres & Cie. 3. The trial court erred in declaring that the document Exhibit A was a contract of agency and in ordering its rescission, and in not declaring that said document was a partnership contract of joint account. 4. The trial court erred in sentencing the defendants to pay to the plaintiffs the sum of P5,919.11 with legal interest from the date the claim was entered. 5. The trial court erred in not declaring that the plaintiffs has violated the terms of the contract Exhibit A. 6. The trial court erred in ordering the defendants to pay to the plaintiff s the sum of P5,919.11 plus legal interest, and ordering at the same time that the defendants render an accounting of the business of the partnership. 7. The trial court erred in dismissing the counterclaim of the defendants for damages suffered by them, and in not declaring that inasmuch as contract Exhibit 45 or A had paying back to the defendants all the capital invested by the defendants Ernesto Macias in the business of the partnership E. Macias Com. Impex Co., Ltd. 8. The trial court erred in dismissing the motion for a new trial requested by the defendants. The change made in the names of the plaintiffs by the amended complaint filed on October 14, 1927, substituting for the partnership "Duhart Freres & Cie.," the names of Pedro Duhart and Eugenio Duhart, who according to said amended complaint are the sole collective partners, and the managing partners according to the evidence, does not constitute a substantial alternation of the party plaintiff, and does not effect the validity and legal force of the attachment of the defendants' property, issued in favor of said "Duhart Freres & Cie.," upon a prior complaint, which writ still subsist as well in favor of the original plaintiff "Duhart Freres & Cie.," as for the same entity in the persons of its own sole collective partners, the plaintiffs Pedro Duhart and Eugenio Duhart. Whenever it happens, as in the instant case, that there is no real change of the party plaintiff, the writ of attachment issued in favor of said plaintiff as an entry, remains unchanged and in favor of said plaintiff as and there is no necessity for issuing another in favor of such as may later appear in the cause as plaintiff, so long as they are to all intents and purposes the same party plaintiff or its successors-in-interest. The alternation thus introduced into the complaint does not amount to a real change in the party plaintiff. Furthermore, this question has already been decided by this court against the defendants herein in the certiorari proceedings instituted by them on January, 1928, G.R. No. 28895.¹ The appellants contend that as the plaintiffs subscribed the contract Exhibit A on behalf of the partnership "Duhart Freres & Cie," they cannot now sue in their town behalf, and in the instant action must be instituted by the partnership. It was so done in the beginning, but said defendant having demurred, and the court sustained their demurrer, the complaint had to bee amended, naming the collective partners as plaintiffs in favor of the original plaintiff, the partnership "Duhart Freres & Cie., It is to be noted that the present plaintiffs, in executing and signing the contract Exhibit A, did so, according to its own terms, "as partners of the firm "Duhart Freres & Cie." doing business in the aforementioned city." At any rate, the defendant, Ernesto Macias, who, in Exhibit A contracted with the plaintiffs, cannot now gainsay their right to bring this suit as partners of said firm. As to the defendant "E Macias Commission Impex Co., Ltd.," the parties entered into an agreement in contract Exhibit A (Clause V) as an agency under said commercial name, and it appears from paragraph 2 of the fifth special defense of the defendants that said defendant is an agency created and organized in the Philippines by virtue of said contract Exhibit A. The defendants come under the doctrine laid down by this court in Strachan & MacMurray vs. Emaldi (22 Phil., 295). There is no merit in the assertion that the contract evidence by instruments Exhibit A, is a joint-account partnership contract. We are not concerned with an accidental association confined to definite transaction, being thus free from any solemnity in its formation (art. 240, Code of Commerce; Merchantile Law, Carreras, p. 300, 3d edition), nor did they in the contract agree upon any capital, or that Ernesto Macias subscribed or would contribute a part of said capital (art. 239, Code of Commerce). On the contrary, it is the opening of an "agency," a word and an idea, repeated and explained throughout the instrument as signifying, a commercial agency. And notwithstanding the wise sphere of action granted to said agency, the parties does not render it any the less an agency, which, however, agreed upon a limit, until further stipulation, as may be seen in clause VIII of the contract, namely, "commissions," which are one of the kinds of a commercial agency, specifically so called in article 244 of the Code of Commerce. We see no sufficient reason for holding that the plaintiffs violated the contract, and therefore, we find no error in the judgment appealed from ordering the dismissal of the defendants' counterclaim. It appears of record that the defendant Ernesto Macias violated clauses VIII, XI, XII, and XIII of the contract, for it has been established that if he did open a banking credit for fifty per cent centum of the value of his orders, which were not paid, neither paid for the credit, nor sent a monthly statement, nor kept accounts, nor forwarded to the plaintiffs a balance and semestral inventory. All of which gives the plaintiffs a right to rescind the contract as agreed upon in clause XIX thereof. As to the amount awarded to the plaintiffs, we find no reason in these proceedings to depart lower court's findings in this matter. With regard to the order that defendant Macias render a detailed account to the plaintiffs of the business of said agency, as prayed for in the complaint, we deem it justified. It is simply the consequence of the recession of the contract of agency, also decreed by the court below. Every agent must give an account of his operations, a general principle expressly laid down in article 1720 of the Civil Code. It is no obstacle to this order to render accounts that a sum of money has been adjudged to the plaintiffs, or that the defendants' counterclaim has been dismissed. Both the claim of said sum of the counterclaim are questioned raised and submitted by the parties to the court, which, in view of the evidence, had no decide and did in fact decide, and it has not been shown that they represent all the transactions between the parties or all the operations of the agency. The appeal being without merit, we affirm the judgment appealed from, with cost against the defendants. So ordered. Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. Footnotes ¹Macias vs. Revilla, decided by resolution of January 14, 1928. The Lawphil Project - Arellano Law Foundation