EN BANC G.R. No. L-2880 December 4, 1906 FRANK S. BOURNS, plaintiff-appellee, vs. D. M. CARMAN, ! AL., defendants-appellants. W. A.

Kincaid for appellants. J. N. Wolfson for appellee. MA"A, J.: The plaintiff in this action seeks to recover the sum of $43 .!", #nited $tated currenc%, &alance due on a contract for the sa'in( of lum&er for the lum&er %ard of )o-Chim-)im. the contract relatin( to the said 'ork 'as entered into &% the said )oChim-)im, actin( as in his o'n name 'ith the plaintiff, and it appears that the said )o-Chim-)im personall% a(reed to pa% for the 'ork himself. The plaintiff, ho'ever, has &rou(ht this action a(ainst )o-Chim-)im and his codefendants *ointl%, alle(in( that, at the time the contract 'as made, the% 'ere the joint proprietors and operators of the said lum&er %ard en(a(ed in the purchase and sale of lum&er under the name and style of )o-Chim-)im. Apparentl% the plaintiff tries to sho' &% the 'ords a&ove italici+ed that the other defendants 'ere the partners of )o-Chim-)im in the said lum&er-%ard &usiness. lawphil.net The court &elo' dismissed the action as to the defendants ,. -. Carman and .ul(encio Tan-Ton(co on the (round that the% 'ere not the partners of )o-Chim-)im, and rendered *ud(ment a(ainst the other defendants for the amount claimed in the complaint 'ith the costs of proceedin(s. /icente 0alanca and 1o-Tauco onl% e2cepted to the said *ud(ment, moved for a ne' trial, and have &rou(ht the case to this court &% &ill of e2ceptions. The evidence of record sho's, accordin( to the *ud(ment of the court, 3That )o-Chim-)im had a certain lum&er %ard in Calle )emer% of the cit% of -anila, and that he 'as the mana(er of the same, havin( ordered the plaintiff to do some 'ork for him at his sa'mill in the cit% of -anila4 and that /icente 0alanca 'as his partner, and had an interest in the said &usiness as 'ell as in the profits and losses thereof . . .,3 and that 1o-Tuaco received part of the earnin(s of the lum&er %ard in the mana(ement of 'hich he 'as interested. The court &elo' accordin(l% found that 3)o-Chim-)im, /icente 0alanca, 1o-Tuaco had a lum&er %ard in Calle )emmer% of the cit% of -anila in the %ear 56"4, and participated in the profits and losses of &usiness and that )o-Chim-)im 'as mana(in( partner of the said lum&er %ard.3 7n other 'ords, coparticipants 'ith the said )o-Chim-)im in the &usiness in 8uestion. Althou(h the evidence upon this point as stated &% the &% the ho'ever, that is plainl% and manifestl% in conflict 'ith the a&ove findin( of that court. $uch findin( should therefore &e sustained. lawphil.net The 8uestion thus raised is, therefore, purel% one of la' and reduces itself to determinin( the real le(al nature of the participation 'hich the appellants had in )o-Chim-)im9s lum&er %ard, and conse8uentl% their lia&ilit% to'ard the plaintiff, in connection 'ith the transaction 'hich (ave rise to the present suit. 7t seems that the alle(ed partnership &et'een )o-Chim-)im and the appellants 'as formed &% ver&al a(reement onl%. At least there is no evidence tendin( to sho' that the said a(reement 'as reduced to 'ritin(, or that it 'as ever recorded in a pu&lic instrument. -oreover, that partnership had no corporate name. The plaintiff himself alle(es in his complaint that the partnership 'as en(a(ed in &usiness under the name and st%le of )o-Chim-)im onl%, 'hich accordin( to the evidence 'as the name of one of the defendants. :n the other hand, and this is ver% important, it does not appear that there 'as an% mutual a(reement, &et'een the parties, and if there 'ere an%, it has not &een sho'n 'hat the a(reement 'as. As far as the evidence sho's it seems that the &usiness 'as conducted &% )o-Chim-)im in his o'n name, althou(h he (ave to the appellants a share 'as has &een sho'n 'ith certaint%. The contracts made 'ith the plaintiff 'ere made &% )o-Chim-)im individuall% in his o'n name, and there is no evidence that the partnership over contracted in an% other form. #nder such circumstances 'e find nothin( upon 'hich to consider this partnership other than as a partnership of cuentas en participacion. 7t ma% &e that, as a matter of fact, it is somethin( different, &ut a simple &usiness and scant evidence introduced &% the partnership ;e see nothin(, accordin( to the evidence, &ut a simple &usiness conducted &% )o-Chim-)im e2clusivel%, in his o'n name, the names of other persons interested in the profits and losses of the &usiness no'here appearin(. A partnership constituted in such a manner, the e2istence of 'hich 'as onl% kno'n to those 'ho had an interest in the same, &ein( no mutual a(reements &et'een the partners and 'ithout a corporate name indicatin( to the pu&lic in some 'a% that there 'ere other people &esides the one 'ho ostensi&l% mana(ed and conducted the &usiness, is e2actl% the accidental partnership of cuentas en participacion defined in article <36 of the Code of Commerce. Those 'ho contract 'ith the person under 'hose name the &usiness of such partnership of cuentas en participacion is conducted, shall have onl% a ri(ht of action a(ainst such person and not a(ainst the other persons interested, and the latter, on the other hand, shall have no ri(ht of action a(ainst the third person 'ho contracted 'ith the mana(er unless such mana(er formall% transfers his ri(ht to them. =Art <4< of the code :f Commerce.> 7t follo's, therefore that the plaintiff has no ri(ht to demand from the appellants the pa%ment of the amount claimed in the complaint, as )o-Chim-)im 'as the onl% one 'ho contracted 'ith him. the action of the plaintiff lacks, therefore, a le(al foundation and should &e accordin(l% dismissed. The *ud(ment appealed from this here&% reversed and the appellants are a&solved of the complaint 'ithout e2press provisions as to the costs of &oth instances. After the e2piration of t'ent% da%s let *ud(ment &e entered in accordance here'ith, and ten da%s thereafter the cause &e remanded to the court &elo' for e2ecution. $o ordered. Arellano, C.J., Torres, Johnson, Carson, Willard and Tracey, JJ., concur.