EN BANC
[G.R. No. L-24193. June 28, 1968.]
MAURICIO AGAD, plaintiff-appellant, vs.
SEVERINO MABATO & MABATO & AGAD COMPANY, defendants-appellees.
Angeles, MaskariƱo & Associates for
plaintiff-appellant.
Victorio S. Advincula for
defendants-appellees.
SYLLABUS
1. CIVIL LAW; PARTNERSHIP; PURPOSE TO
"OPERATE A FISHPOND"; APPLICABILITY OF ART. 1773 N.C.C. — Where a
partnership was formed "to operate a fishpond", not to "engage
in a fishpond business", and the partners contributed P1,000.00 each as
their share, Art. 1773 of the Civil Code does not apply, it appearing that
neither a fishpond nor a real right thereto was contributed to the partnership
or become a part of the capital thereof, even if a fishpond or a real right
thereto could become part of its assets.
D E C I S I O N
CONCEPCION, J p:
In this appeal, taken by plaintiff Mauricio
Agad, from an order of dismissal of the Court of First Instance of Davao, we
are called upon to determine the applicability of Article 1773 of our Civil
Code to the contract of partnership on which the complaint herein is based.
Alleging that he and defendant Severino
Mabato are — pursuant to a public instrument dated August 29, 1952, copy of
which is attached to the complaint as Annex "A" — partners in a
fishpond business, to the capital of which Agad contributed P1,000, with the
right to receive 50% of the profits; that from 1952 up to and including 1956,
Mabato who handled the partnership funds, had yearly rendered accounts of the
operations of the partnership; and that, despite repeated demands, Mabato had
failed and refused to render accounts for the years 1957 to 1963, Agad prayed
in his complaint against Mabato and Mabato & Agad Company, filed on June 9,
1964, that judgment be rendered sentencing Mabato to pay him (Agad) the sum of P14,000,
as his share in the profits of the partnership for the period from 1957 to
1963, in addition to P1,000 as attorney's fees, and ordering the dissolution of
the partnership, as well as the winding up of its affairs by a receiver to be
appointed therefor.
In his answer, Mabato admitted the formal
allegations of the complaint and denied the existence of said partnership, upon
the ground that the contract therefor had not been perfected, despite the
execution of Annex "A", because Agad had allegedly failed to give his
P1,000 contribution to the partnership capital. Mabato prayed, therefore, that
the complaint be dismissed; that Annex "A" be declared void ab
initio; and that Agad be sentenced to pay actual, moral and exemplary damages,
as well as attorney's fees.
Subsequently, Mabato filed a motion to
dismiss, upon the ground that the complaint states no cause of action and that
the lower court had no jurisdiction over the subject matter of the case,
because it involves principally the determination of rights over public lands.
After due hearing, the court issued the order appealed from, granting the
motion to dismiss the complaint for failure to state a cause of action. This
conclusion was predicated upon the theory that the contract of partnership,
Annex "A", is null and void, pursuant to Art. 1773 of our Civil Code,
because an inventory of the fishpond referred in said instrument had not been
attached thereto. A reconsideration of this order having been denied, Agad
brought the matter to us for review by record on appeal.
Articles 1771 and 1773 of said Code
provide:
"Art. 1771. A partnership may be
constituted in any form, except where immovable property or real rights are
contributed thereto, in which case a public instrument shall be necessary.
"Art. 1773. A contract of partnership
is void, whenever immovable property is contributed thereto, if inventory of
said property is not made, signed by the parties, and attached to the Public
instrument."
The issue before us hinges on whether or
not "immovable property or real rights" have been contributed to the
partnership under consideration. Mabato alleged and the lower court held that
the answer should be in the affirmative, because "it is really
inconceivable how a partnership engaged in the fishpond business could exist
without said fishpond property (being) contributed to the partnership." It
should be noted, however, that, as stated in Annex "A" the
partnership was established "to operate a fishpond", not to
"engage in a fishpond business". Moreover, none of the partners
contributed either a fishpond or a real right to any fishpond. Their
contributions were limited to the sum of P1,000 each. Indeed, Paragraph 4 of
the Annex "A" provides:
"That the capital of the said
partnership is Two Thousand (P2,000.00) Pesos Philippine Currency, of which One
Thousand (P1,000.00) pesos has been contributed by Severino Mabato and One
Thousand (P1,000.00) Pesos has been contributed by Mauricio Agad.
xxx xxx xxx"
The operation of the fishpond mentioned in
Annex "A" was the purpose of the partnership. Neither said fishpond
nor a real right thereto was contributed to the partnership or became part of
the capital thereof, even if a fishpond or a real right thereto could become
part of its assets.
WHEREFORE, we find that said Article 1773
of the Civil Code is not in point and that, the order appealed from should be,
as it is hereby set aside and the case remanded to the lower court for further
proceedings, with the costs of this instance against defendant- appellee,
Severino Mabato. It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Angeles and Fernando, JJ., concur.
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