[ G.R. No. 10029. July 15, 1918 ] 38 Phil. 283
[ G.R. No. 10029. July 15, 1918 ]
FAUSTINO LICHAUCO, PLAINTIFF AND APPELLANT VS. JOSE DE GUZMAN, TOMAS DEL RIO, JUAN OLABARRIETA, RAMON SORIANO, AND GREGORIO OLEGARIO, DEFENDANTS AND APPELLEES. D E C I S I O N
TORRES, J.:
The following civil cases were filed in the Court of First Instance of this city:
No. 8883, brought by Faustino Lichauco against Jose de Guzman; No. 9213, by Tomas del Rio and Juan Olabarrieta against Faustino Lichauco; and No. 9217, by Ramon Soriano against Faustino Lichauco.
As a result of the agreement had between the parties on February 8, 1912, said three cases Nos. 8883, 9213, and 9217 were joined into a single action.
In case No. 8883 counsel for Faustino Lichauco, by a written complaint filed in the Court of First Instance on August 26, 1911, alleged that the defendant Jose de Guzman, by virtue of a verbal order given by the plaintiff, took charge of the cattle, including carabaos, imported by the latter and intended for the slaughterhouse in Manila and for sale in the provinces; that the accounts which the defendant rendered to the plaintiff showed a balance of P90,000, and that Guzman employed said sum in his private business and refused to deliver it to the plaintiff in spite of the latter’s demands made upon him so to do. Plaintiff’s counsel therefore asked that judgment be rendered against the defendant for said sum, together with the legal interest thereon and the cost, and that, besides, an attachment be levied on his property.
By an order of November 11, 1911, the judgment in default rendered against the defendant was set aside and he was allowed a period of five days in which to answer the complaint.
The demurrer interposed by the defendant to the complaint having been overruled, on December 2 of the same year he answered the complaint, asking to be absolved therefrom, and, by means of a counterclaim, asked that the plaintiff be ordered to pay him P116,005.85, alleging that he, the defendant Guzman, had been engaged in the purchase and sale of cattle, including carabaos, since the American occupation and for many years prior thereto; that about the beginning of April, 1909, the plaintiff, to avoid his financial ruin, proposed to the defendant Guzman that he (Guzman), Ramon Soriano, Gregorio Olegario, Tomas del Rio, and Juan Olabarrieta enter into joint account agreement with the plaintiff, which they did on April 15 of the same year, they having met in the house situated at No. 115, Calle Anloague, Binondo; that said agreement was made under certain conditions among which it was stipulated that the business should be conducted in the name of the plaintiff, Lichauco, under his management and responsibility; that for his personal services the plaintiff was not to be entitled to collect any salary or compensation whatever, except his share of the profits obtained; that the profits derived from the sale of the cattle to be imported in the plaintiff’s name and for the account of the joint account partnership should be distributed among the partners in the following proportion: Twenty-five per cent to Faustino Lichauco; 23 per cent to Jose de Guzman; 23 per cent to Ramon Soriano; 19 per cent to Gregorio Olegario; and 10 per cent to Tomas del Rio and Juan Olabarrieta; that from April 14, 1910, when said partnership commenced business, until December 31 of the same year, the sales of cattle, on the hoof or as meat, in the slaughterhouse produced P2,782,885, with a net profit of P360,460.75; that from January 1, 1911, to August 15, 1911, the sales of cattle produced P1,500,000, with a profit of P200,000; that, in accordance with the stipulations made of these amounts obtained during said two periods, the defendant was entitled, at the rate of 23 per cent, to the sum of P116,005, which sum the plaintiff, under futile pretexts, refused to pay him, notwithstanding the demands made upon him so to do.
In view of the answer and counterclaim presented by counsel for the defendant Jose de Guzman, the plaintiff amended his complaint—an amendment allowed by the court—alleging that during the first days of April, 1909, the plaintiff, Lichauco, in accordance with a verbal contract made with the five defendants, obligated himself to deliver to them for sale, on a net commission of “P1.50 per head, all the cattle imported by the plaintiff, the defendants jointly and severally binding themselves to be responsible to the plaintiff for the total price of all the cattle delivered to them, after, deducting the amount of the commission and the expenses of management; that, pursuant to the contract, the defendants monthly rendered accounts of the business to the plaintiff; that, between April 1909, and August, 1911, inclusive, the plaintiff delivered to the defendants for sale on commission and the latter sold, 44,736 head of cattle belonging to him, at the price of P2,637,245.16, after deducting all the expenses of management, as it so appears from the accounts rendered by the defendants; that, notwithstanding the demands made upon them by the plaintiff, the defendants had not settled their accounts and have delivered to the plaintiff only the sum of P2,521,302.52, leaving a balance of P48,838.64, which balance they had appropriated to themselves and consequently was owing to the plaintiff. The latter, therefore, asked that judgment be rendered whereby the defendants be ordered jointly and severally to pay him said sum of P48,838.64, together with the interest thereon and the costs, and denied each and all of the allegations of the counterclaim made by Guzman, not compatible with the facts above set forth.
Counsel for Gregorio Olegario, in answer to the second amended complaint, admitted the first allegation thereof and denied all the others not in conformity with or contrary to the allegations contained in his special defense, counter-claim, or cross-complaint, and set forth that the plaintiff, Lichauco, in order to avoid a ruinous competition in the cattle business, proposed to the defendants, during the first days of April, 1909, that they enter into a joint account agreement with him to carry on the business of the importation of cattle, including carabaos; that this proposition was accepted by the defendants and thus the partnership was formed; that it was stipulated that the competition that there was between them should cease and that they should unite against the powerful competition carried on by Barretto & Co. and Lack & Davis; that each one of the joint account partners was to bring in such amount of capital as he conveniently could, and that if it should be necessary said capital would be furnished by the plaintiff, Lichauco, and the defendant, Soriano; that the plaintiff was to be the manager or administrator of the business and was to receive as remuneration 10 per cent of the profits; that the remaining 90 per cent was to be distributed among the five partners, as follows: 25 per cent to Faustino Lichauco, 23 per cent to Jose de Guzman, 23 per cent to Ramon Soriano, 19 per cent to Gregorio Olegario, and 10 per cent to Del Rio and Olabarrieta; that, from April 14, 1909, when the partnership was organized and commenced to do business, until December 31, 1910, said firm obtained profits not less than P360,414.75, Philippine currency; that, from January 1, 1911, to January 31, 1912, the business produced a net profit of P126,729.14, and that, after deducting therefrom the plaintiff’s 10 per cent, the defendant Olegario, at the rate of 19 per cent, was entitled to P83,301.60; that as Olegario had received as part of said profit only P54,366.82, there remained a balance in his favor of P28,934.78, which the plaintiff had refused and continued to refuse to pay, and that he also refused to render a proper account of the partnership affairs. Therefore said counsel prayed the court to absolve from the complaint the defendant Olegario, and to order the plaintiff to pay the defendant P28,934.78, with legal interest thereon from the date of the defendant’s cross-complaint or counterclaim, and likewise to pay the costs.
Counsel for the other defendant Ramon Soriano made allegations similar to those set forth by Olegario in his answer to the second amended complaint, and added that, after deducting 10 per cent from said profits, 23 per cent thereof, according to the stipulations made, pertained to the defendant, Soriano, and amounted to P1,200,838.78; that the latter brought in and delivered to the plaintiff on different occasions, as partnership capital, the sum of P55,800; and that, notwithstanding the stipulations made, the plaintiff refused and continued to refuse to account for, and to deliver to the defendant, Soriano, his share of the profits of the business. Said counsel therefore asked (1) that his client be absolved from the complaint, and (2) that the plaintiff be ordered to pay P156,638.78, the sum of both amounts mentioned in paragraphs 9 and 10 of his answer, together with legal interest thereon and the costs.
Counsel for the defendants, Tomas del Rio and Juan Olabarrieta, answering the second amended complaint, made statements and allegations similar to those set forth by the other defendants. He added, however, that his clients had organized a mercantile firm, domiciled at No. 824 Calle Anloague and engaged in the importation of cattle from China and Borneo; that, from April 14, 1909, to December 31, 1910, the business of the sale of cattle, as meat or on the hoof, in the slaughterhouse, produced the sum of P2,782,685 with a profit of P360,414.75; that from January 1, 1911, to December 31 of the same year, a net profit of P126,729.14 was obtained; that after deducting from this profit the plaintiff’s 10 per cent share, there was owing to the defendants Del Rio and Olabarrieta 10 per cent of the balance, or P43,842.95, which sum these defendants had not received, and the plaintiff had been delaying its payment. Therefore counsel for Del Rio and Olabarrieta asked that his clients be absolved from the complaint, and that the plaintiff be ordered to pay the said sum of P43,842.95, with legal interest thereon from the date of their cross-complaint, and the costs.
The defendant Jose de Guzman, in answer to the second amended complaint, made statements and allegations similar to those advanced by his codefendants, and also added that, in accordance with the stipulations entered into, he was entitled, at the rate of 23 per cent of the profits obtained, to the sum of P100,838.78, and that, as he had received as part of said profits only the sum of P25,616.37, there still remained a balance in his favor of P75,222.41 which the plaintiff Lichauco had refused and continued to refuse to pay the defendant, notwithstanding the demands made upon him. Jose de Guzman therefore asked that he be absolved from the complaint, and that by his counterclaim the plaintiff be ordered to pay him P75,222.41, with legal interest thereon from the date of the defendants cross-complaint, and the costs.
Counsel for the defendant Jose de Guzman asked permission of the court to amend paragraphs 4 and 7 of his preceding answer, so that it should read as follows:
“On April 14, 1909, having met in the house situated at No. 115 Calle Anloague, the plaintiff Lichauco and the defendants Soriano, Guzman, Olegario, and Del Rio, the latter for himself and as the representative of Olabarrieta, organized a joint account partnership and stipulated that they should all contribute to the joint business their respective customers and cattle importation business and likewise the personal services that might be assigned to each partner, in order to sell here the largest possible number of cattle, including carabaos, and also for the purpose of ending the competition between them and unite against the competition carried on jointly by the powerful firms of Barretto and Lack & Davis; that, from April 14, 1909, when the partnership commenced business, until December 31 of the same year, the sales of cattle, as meat or on the hoof, produced the sum of P2,782,685 which left a net profit of P360,414.65.”
Counsel stated that the preceding amendment was based on the evidence; and notwithstanding the plaintiff’s opposition, it was, with exception, admitted by an order of August 23, 1913.
The plaintiff, in turn, asked by motion that he be permitted to amend the second amended complaint so as to make it conform to the facts proven at the trial. This motion was objected to by counsel for the defendants, and was denied by an order of October 14th of the same year. Exception to this ruling was taken by plaintiff’s counsel.
Upon a hearing of the case, after a joinder of cases Nos. 8883, 9213, and 9217, as stated in the beginning of this decision, evidence was adduced by the parties and, in accordance therewith, on February 13, 1914, judgment was rendered in which—holding that there existed between the plaintiff and the defendants a joint account partnership for the business of the purchase, importation, and sale of cattle, including carabaos, in the manner and conditions set forth by the defendants—the plaintiff, Faustino Lichauco, was ordered to pay to Ramon Soriano the sum of P36,800, with interest thereon at the rate of 6 per cent per annum from February 5, 1913; to pay severally P37,608.73 to the defendants Tomas del Rio and Juan Olabarrieta, likewise with interest thereon from December 21, 1911; to pay P14,499.56 to the other defendant, Jose de Guzman, with like interest from December 5, 1911; and likewise to pay P81,024.87 to the other defendants, Ramon Soriano and Gregorio Olegario, with like interest from December 22, 1911, without special finding as to costs. This judgment was modified by another of March 17 of the same year, 1914, in the sense that Faustino Lichauco was ordered to pay Ramon Soriano the sum of 20,000, with interest at 6 per cent per annum from February 5, 1913. The plaintiff was also ordered to pay to said Ramon Soriano and Gregorio Olegario the sum of P69,990.87, with interest at 6 per cent per annum from December 22, 1911. In this second judgment were reiterated the other findings contained in the previous one adverse to the plaintiff and favorable to the defendants, Del Rio, Olabarrieta, Guzman, and no special finding was made as to costs. Counsel for the plaintiff excepted to these judgments and moved for a new trial. His motion was denied, exception was entered by him, and, upon the filing of the proper bill of exceptions, the same was approved, certified, and forwarded to the clerk of this court.
The questions submitted to the decision of this court are three: The first consists in determining whether or not it is true that there was executed by and between the plaintiff and the defendants a joint account partnership contract in the form and conditions as stated by the latter, and whether this contract, notwithstanding that it was not set forth in any private or public instrument, was carried into effect and was observed by the parties from April 14, 1909, to August, 1911. Second. Whether or not it is true that the defendant Ramon Soriano, as a joint account partner, brought into the partnership and delivered to the plaintiff, Lichauco, in partial amounts, the sum of P55,800 according to the documents signed by the plaintiff, Exhibits 42 to 51. Third. Whether or not it is true that the sale of cattle, effected by some of the defendants, was made by them on a commission basis of P1.50 per head.
The plaintiff, Faustino Lichauco, denies that he executed with the defendants said contract organizing by common agreement the joint account partnership, and that any such contract existed during said period of two years and five months. He alleged that, as absolute owner of all the cattle the importation and sale of which during those years was the object of the business in which he was engaged, he merely delivered this stock, in various shares, to the defendants Jose de Guzman, Ramon Soriano, and Gregorio Olegario in order that they might sell the same on a commission basis of P1.50 per head of the animals sold; that the number of cattle belonging to him so sold on commission between the months of April, 1909, and August, 1911, amounted to 45,144, at a total price of P2,656,328.49, after deducting all the expenses incurred from the time the defendants received the cattle until the latter were sold, as shown by the monthly accounts rendered to the plaintiff by the defendants.
From the documentary and oral evidence, as a whole, adduced during the trial by the defendants, who are at the same time the plaintiffs in the counterclaim or cross-complaint, it is concluded that satisfactory proof has not been produced to show the existence of the alleged joint account partnership said to have been formed between the defendants and the plaintiff.
In fact, the defendant, Ramon Soriano, testified that on April 14, 1909, immediately after they had agreed upon the organization of said joint account partnership, in the meeting held by them on the date aforementioned, witness made a memorandum of the stipulations made and resolutions adopted by those present, although afterwards the plaintiff, Lichauco, would not sign it, saying that it would be dangerous to do so, inasmuch as witness was interested in the partnership which he, Soriano, and the other defendants had contracted with Lack & Davis.
If for this sole circumstance said memorandum was never signed and the partnership contract was never reduced to writing in even so much as a private instrument, there is of course ample reason to assert that the reason given by Soriano in his testimony is not true, because on April 14, 1909, the partnership agreed upon by the defendants with Lack & Davis was not yet in existence, and was stipulated and formed only on the 21st of May of that year; besides, Faustino Lichauco was not then, nor at any other time, a member of that partnership. So it is that the other defendant, Tomas del Rio, testified that the refusal of Lichauco to sign the partnership contract between himself and the defendants had nothing to do with the subsequent partnership formed with Lack & Davis, which testimony contradicts the statements made by Soriano.
It is to be noted that long before April 14, 1909, the date of the alleged partnership, Soriano and Lichauco had formed between themselves a joint account partnership which they took good care to have appear in a written contract, as well as the business in which they were to engage and the conditions of the contract, as may be seen by the document Exhibit A-13. In the books and documents presented during the hearing of this case, the defendants Soriano always required of the plaintiff receipts or chits for even the unimportant sums which, on various occasions, he delivered to the latter. It is, therefore, very strange that, it being a question of the organization of a joint account partnership for the importation and sale of cattle the value thereof amounted to more than two and a half million pesos, the defendants should not have endeavored to have the conditions of the contract set forth, if not in a notarial document, at least in a private instrument. The aforemen tioned memorandum mentioned by Soriano, which, as he stated, contained the agreement made, together with the details and conditions of the joint account partnership contracted between themselves, was not presented or exhibited during the course of this suit.
Although all the cattle that were the subject matter of the business belonged to the plaintiff, Lichauco, nevertheless, in view of the great importance which, in case of success, it was expected the business would assume to the benefit of the partners, and of the considerable value of the cattle the sale of which the plaintiff managed, as shown by the respective claims and counterclaims made during the course of these proceedings, it is at first sight inexplicable why and for what reason the partnership contract was not made to appear in any kind of document whatever.
It was reasonable and just that from May 21, 1909, the defendants should have feared to violate said clause 18 of the partnership contract made with Lack & Davis; but after this partnership had ceased to exist, toward the end of the year 1910, it is not understood why and for what reason the existence of the other alleged partnership was not, together with the conditions stipulated, recorded in any document whatsoever, from January to August, 1911.
The plaintiff absolutely denied the existence of the joint account partnership on which the defendants’ counterclaims and cross-complaints are founded, and the conditions and other particulars concerning this alleged partnership are known only by the averments of the defendants themselves, in so far as regards the distribution of the profits, although there are some contradictions in respect to the remuneration which the manager was to receive, and to the amount of the capital which the defendants were to furnish.
Where it true that a joint account partnership had been covenanted between the plaintiff and the defendants, and that this suit should be decided on such a hypothesis, still no explanation whatsoever is found in the record as to why and for what reason it is stated in the very books kept by the defendants, Soriano, Olegario, and Guzman, that the cattle which they had been selling on commission from April, 1909, to August, 1911, belonged absolutely to the plaintiff Lichauco, while, were it true that the alleged partnership contract existed between the plaintiff and the defendants, and that the business belonged to this partnership, record should have been made in its books that the cattle sold by the defendants likewise belonged to the partnership.
It is a fact justified by the record that the defendants tried to establish an agency for the purchase and acquisition of cattle from Pnom Penh, Cochin China, for the purpose of entering into competition with the business managed by the plaintiff, Lichauco, as that competitive agency shipped to these Islands, on the steamship Binthuan, a lot of cattle consigned to the defendant Jose de Guzman, and if the latter, after Lichauco had discovered the fact, was obliged to turn over this shipment to Lichauco, and if the plaintiff took charge, of the same, it was all due to the energetic action displayed by the plaintiff and to his threat to bring charges against Guzman, who was then owing the plaintiff a considerable sum which this defendant had employed in said purchase of cattle. In fact, in the Exhibit 55 1/2— Lichauco’s account in Olegario’s book—the sales of cattle, effected by the latter, were recorded on the “credit” side of the book, and the receipts on the “debit” side of the same, the expenses and losses being charged against Lichauco. Such procedure indicates that the defendants, as mere industrial commission agents, had nothing to do with said expenses and losses. The contents of the exhibits 63 and A-7 show that Soriano and Guzman made similar entries in their respective books, in which latter, as well as in the one kept by Olegario, there is not the slightest indication that there was any such joint account partnership between them. Said exhibits also show that the defendant commission merchants rendered accounts of the cattle sold and of the proceeds thereby obtained.
For the purpose of further proving the existence of the alleged joint account partnership, other evidence was taken, with the following result:
In Lichauco’s ledger, the word vacunos (cattle) appears in the title of the account of Jose de Guzman, and counsel for the defendants contend that in the space where that word and another were written there had previously been written the words " sociedad nueva” (new partnership) ; but the plaintiff stated that, according to his cashier, Tolentino, there was written in the title: “Jose Guzman, cuenta matanzas” (Jose Guzman, slaughter account), and that this last word was erased so as to make the title agree with the daybook. The expert chemist who examined said ledger testified that the result of the experiment he had made with the substance he had with him at the trial showed that no word at all appeared to have been written in ink in the space of the erasure on the paper, immediately following on the same line the written word vacunos. An assay was also made to ascertain whether the space occupied by the word vacunos could contain the words sociedad nueva, written in letters of the same size. The result was negative; it was found that these last two words could not be written in the space indicated.
Clarke, the expert, testified that from Lichauco’s books it was not impossible to learn the number of cattle delivered by the latter to the defendants, because, although sometimes the number of head was not set forth in the plaintiff’s books, it was specified in a majority of cases; that, in Guzman’s account, the number of cattle received was stated, except in one entry; that he had prepared an extract of the profits (Exhibit A—4) from the ledger and day book and the vouchers (Exhibits A to X, and Y to KKK); that the defendants gave Lichauco receipts for the cattle delivered by him to them, said receipts being Exhibits A to X, and Y to KKK; and that, in Lichauco’s books, the commissions do not appear to have been credited, except in 1911 and 1912, and comprise those from April 14, 1909, to date (sten. notes, pp. 824-828).
He also testified that, in his opinion, the Exhibits A to X and Y to KKK were accounts of the sales of cattle sold by Guzman and Olegario (sten. notes, p. 59), and that, from the accounts rendered and from Lichauco’s books, he could estimate the number of cattle received and sold by Ramon Soriano, Gregorio Olegario, and Jose de Guzman. (Sten. notes, pp. 61-62.)
The witness Gregorio Tolentino, Lichauco’s cashier and attorney in fact and also auditor of his account books, testified that the Exhibits A to X were received from Guzman, and the Exhibits Y to KKK, from Olegario. (Sten. notes, pp. 3-5.) Lichauco gave the same testimony. (Sten. notes, p. 775.) Tolentino further testified that the result shown in said exhibits, or that of the accounts rendered by the defendants, was entered in the books, that is to say, in the respective accounts.
All the foregoing testimony shows that there was no such partnership, but an agency to sell on commission.
So, then, it is evident that conclusive proof was not adduced of the existence of the alleged joint account partnership, the basis of the defendants’ unfounded claims against the plaintiff. In order that the existence of a joint account partnership may be admitted, the laws in force require, besides other proofs recognized by statute, that the agreement made between the parties must be reduced to writing, pursuant to the provisions of article 51 of the Code of Commerce, cited in article 240 of the same code, which deals with the herein alleged partnership, inasmuch as article 51 provides that the declaration of witnesses shall not in itself be sufficient to prove the existence of a contract the consideration of which exceeds 1,500 pesetas or P300, but that it must be corroborated by other evidence in writing—a principle in conformity with article 1280 of the Civil Code, the last paragraph of which prescribes that contracts, in which the amount of the prestations of one of the two contracting parties exceeds 1,500 pesetas, must be reduced to writing, though they be private.
So, then, the record does not show that the existence of the alleged joint account partnership was proven by any documentary or oral evidence; neither does it show that the accounts drawn up by the expert Clarke were challenged by the defendants.
In order to prove the existence of the alleged joint account partnership, and notwithstanding that the majority of the partners brought no capital whatever into the partnership funds, it was nevertheless alleged by the defendant Ramon Soriano that he delivered to the plaintiff, Lichauco, in partial amounts, the sum of P55,800 (Exhibits 42 to 51), and that he brought it as capital stock for himself and in the name of the other defendants.
The record shows that when Soriano delivered the sums that finally aggregated the amount of P55,800, both he and the defendant Olegario, especially the latter, had received and sold cattle the value of which was greater than the amount of money they turned in. For this reason it can not be affirmed that the sums so delivered to the owner of the cattle constituted contributions by the defendants to the capital of the partnership, as will be seen hereinafter.
From said sum of P55,800 received by the plaintiff, first of all, there must be excluded the sum of P16,000, because Lichauco received it as a loan and not as a share of capital brought into the alleged partnership, nor as part of the price of the cattle sold by Soriano and Olegario, and it so appears in the document, the plaintiff’s Exhibit A-6, and this is further confirmed by the Exhibit A-7, which is a copy of the pertinent parts of Soriano’s own book in which the following entry appears: “caja su vale” without reference whatever to any share in the cattle business, such as it is shown was made by Soriano himself in the same Exhibit A-7 when he received sums for the joint account partnership which he and Lichauco had formed between themselves only, long before April 14, 1909, according to the notarial document Exhibit A-13. This joint account partnership for the cattle business was established only by Soriano and Lichauco and none of the other defendants appeared therein; it was, therefore, a partnership very different from the one alleged as a basis of the claims presented against Lichauco.
It is to be noted that the sum received as a loan by Lichauco from Soriano appears, by said Exhibit A-7, to have been paid, and that this document further shows the latter to be the former’s debtor.
The remaining sum of P39,800 was delivered to Lichauco as a part of the value or price of the cattle that belonged to the plaintiff and were sold by Olegario, chiefly, and by Soriano; this is proven by Exhibits A, A—1, Y, KKK, 55 1/2.
In fact, according to Exhibit A-1, on June 4, 190ft, Lichauco received from Soriano, chargeable to the cattle account, the sum of P6,000; but this same exhibit also shows that Soriano had obtained from the sales made of the plaintiff’s cattle, from April 28 to May 16, 1909, the sum of P8,064.27. (See also Exhibit A.) According to the exhibit A-1, on June 22, 1909, Soriano delivered P8,000, chargeable to the cattle account; but according to Exhibit Y, Olegario had obtained from the sales made of Lichauco’s cattle from the 2d to the 21st of the same month of June the sum of P12,038, and had not yet turned in any part whatever of the amounts in his possession as the price of the cattle previously sold. (See also Exhibit 55 1/2, the account kept by Olegario.) A careful examination of the exhibits Y to KKK, and 55 1/2 and A-1, shows most unquestionably that the other sums delivered by Soriano to Lichauco were a part of the price of the cattle belonging to Lichauco that were sold by Soriano and Olegario.
Del Rio and Olabarrieta had no interest in the business, either as commission merchants or as industrial partners, because they did not sell any of Lichauco’s cattle.
In discussing in another part of this decision the fact that the defendants Soriano, Olegario,. and Guzman engaged in the sale of the cattle they received from the plaintiff, by virtue of an agency, we commenced by stating that the defendants did so without reference whatsoever to the alleged joint account partnership. The plaintiff having positively affirmed that these defendants proceeded to sell, on a commission of P1.50 for each animal sold, the cattle that he had imported from abroad, the defendants’ counsel, notwithstanding their claim that their clients did so by virtue of a joint account partnership contract, finally admitted that in fact said three defendants made such sales in consideration of the commission alleged by the" plaintiff. This admission had to be made, for the defendants had made the same admission in their respective sworn testimonies, although their counsel pleaded that said sales on commission are not incompatible with the existence of the joint account partnership that is the basis of their claims, and therefore argue that the defendants were at the same time joint account partners and commission agents of the owner of the cattle, the plaintiff Lichauco.
This court having held that such a joint account partnership did not exist, for lack of evidence to support plaintiff’s denial that it did, it is entirely useless to discuss whether the commission contract is or is not compatible with a partnership that never existed, and the only fact proven, which is recognized, and admitted by the defendants and their counsel, is that relative to the defendants having been engaged in the sale of cattle belonging to the plaintiff, on a commission of P1.50 per head.
It is true that the plaintiff, in an official Fetter addressed to the Collector of Internal Revenue in connection with a matter concerning taxes, and also in several letters which he signed and addressed to different persons, calls some of the plaintiffs his partners in the cattle business, and in said letter to the Collector of Internal Revenue he names them as industrial partners. However, this appellation or denomination of partners was due to the fact that the owner of the cattle the sale of which was the object of the business had made the assignment and perhaps agreed with the defendant commission merchants that, besides the commission of one peso and a half per head, they were entitled to collect 10 per cent of the net profits derived from their sales of the cattle. The plaintiff explicitly states so in his letter, Exhibit 41, addressed to the Collector of Internal Revenue, in answer to the questions which the Collector had asked him in the matter of the investigation of certain data that concerned his Bureau. It cannot be believed that the plaintiff did not tell the truth in said official letter; it is therefore unquestionable that the defendant commission merchants were entitled, besides, to collect 10 per cent of the net profits of the commission business in question. This point was not brought up nor discussed at the trial, and it is to be believed that counsel for the defendants tacitly waived claim to said 10 per cent of the net profits because they preferred to demand a certain percentage of a larger sum by virtue of the alleged joint account partnership; and in view of such procedure and the silence of the defendant commission merchants, the plaintiff in turn deemed it more suitable to his interests to keep silent and not even mention the 10 per cent referred to in his letter to the Collector of Internal Revenue.
As a result of the foregoing statements, justice requires that we hold that the defendants Soriano, Olegario, and Guzman, besides the commission of P1.50 per head of cattle sold by them, are entitled to collect 10 per cent of the profits derived from the proceeds realized from their sales of Lichauco’s cattle.
In order to be able to separate the sums that correspond to each one of the defendants as payment of the P1.50 for each head of cattle sold from those due them by reason of the 10 per cent of the net profits, it is indispensable to determine the number of cattle sold by each defendant, the amounts turned in on account, the value of the sales made, the total amounts derived from the P1.50 commission and the. 10 per cent of profits, and the credit or debit balance with respect to each of them. These details are given in the following extract. Attention is invited to the fact that the expenses are included in the accounts of each one of the parties interested:
Extract of accounts.
SORIANO.
Debit.
Credit.
For 291 head of cattle sold by him…………..
P17,812.74
As receipts………………………………………………………..
P39,800.00
His commission at P1.50 per head on 291 head…………….
436.50
His 10 per cent of profits on P21,341.61……………………….
2,134.16
Final balance in his favor……………..
__24,557.92
42,370.66
42,370.66
OLEGARIO.
For 16,019 head of cattle sold by him……..
P949,531.15
As amounts turned in by him……………………………………..
P843,872.65
His commission at P1.50 on 16,019………………………………..
24,028.50
His 10 per cent of profits………………………………………………
2,134.16
Balance in his favor in extract A-3 on sale of 7,356 head of cattle, amounts turned in on account and his commission…………….
6,729.47
Final Balance in favor of Lichauco and against Olegario ……………
__72,766.37
949,531.15
949,531.15
GUZMAN.
For 21,484 head of cattle sold by him……….
P1,246,511.24
His commission on 21,484………………………………………………
P32,226.00
Amounts turned in by him……………………………………..
1,167,510.74
His 10 per cent of profits…………………………………….
2,134.16
Final balance against him………………………………….
___44,640.34
1,246,511.24
1,246,511.24
From the preceding extracts it appears that, notwithstanding that the sums delivered by Soriano to the plaintiff Lichauco were, as a general rule, derived from the proceeds of the sale of the cattle which the former had received from the latter, the value of the cattle received was less than the sum of P39,800 which Soriano had turned in; so that deducting the value of said cattle sold, their owner still should return to Soriano the sum of P24,557.92, and therefore Soriano delivered more money to the plaintiff than the total sum realized by this defendant from his sales of cattle. In trying to explain this excess, and after a careful examination of the books and accounts presented at the trial, we are confronted with the following dilemma: Either Soriano delivered to Lichauco P39,800, partly on account of the value of the cattle he (Soriano) had sold; and partly—making up the sum just mentioned—as money loaned to Lichauco at the latter’s request, or he turned in—on account of the cattle which both he and Gregorio Olegario had received for sale on commission and he had sold on his own account and in the name of Olegario—various sums as the proceeds of such sales, but with such confusion that Soriano himself had no exact knowledge of the amount that he turned in for himself and in Olegario’s name; for, in the books which we have examined, we find sums entered by Lichauco, in Soriano’s name, as having been received from Olegario; and, in order to obtain some explanation such as is required for the purpose of this decision, we proceeded to separate in so far as was possible, the sums turned over to Lichauco by Soriano and Olegario, respectively; the result is the foregoing extract of accounts.
With respect to the interest that may have accrued on said amounts, this court holds that its payment shall be due only from the time these latter shall have been settled by this decision. In the case of Montilla vs. Corporacion de PP. Agustinos (25 Phil. Rep., 447), it was held that:
“The obligation to pay interest on a sum fixed in a judgment exists from the date of the sentence, when so declared; for until the net amount of the debtor’s liability has been determined he cannot be considered delinquent in the fulfillment of his obligation to pay the debt with interest thereon. (Art. 1108 of the Civil Code, and decisions of the supreme court of Spain, of November 19, 1869, February 27, 1901 and July 13, 1904.)”
For the foregoing reasons, reversing the judgment appealed from, we should as we do hereby order the defendant Gregorio Olegario to pay to the plaintiff, Faustino Lichauco. the sum of P72,766.37, and the defendant, Jose de Guzman^ likewise to pay to the plaintiff Lichauco the sum of P44,640.34. The other defendants, Ramon Soriano, Tomas del Rio, and Juan Olabarrieta, are absolved from the complaint. The plaintiff, Faustino Lichauco, is likewise ordered to pay and return to Ramon Soriano the sum of P24,557.92. Each of the defendants, Olegario and Guzman, and the plaintiff, Lichauco, shall pay interest at the rate of 6 per cent per annum on the amounts which they are respectively obliged to pay, from the date of this decision until said amounts shall have been paid.
The plaintiff, Lichauco, is absolved from the counter-claims and cross-complaints filed against him.
No special finding is made as to the costs of both instances. So ordered.
Arellano, C. J., Street, and Avanceña, JJ., concur.