EN BANC
[G.R. No. 24243. January 15, 1926.]
ILDEFONSO DE LA ROSA, administrator of the
intestate estate of the deceased Go-Lio, plaintiff-appellant, vs. ENRIQUE
ORTEGA GO-COTAY, defendant-appellant.
Crispin Oben for plaintiff-appellant.
Paredes, Buencamino & Yulo for
defendant-appellant.
SYLLABUS
1. PARTNERSHIPS; LIQUIDATION OF THEIR
BUSINESS; DETERMINING PROFITS. — When in liquidating a partnership the profits
for a given period of time cannot be exactly determined for lack of evidence,
but the profits for certain periods prior and subsequent thereto are known, the
profits corresponding to the said given time may be determined by finding the
average of those profits already known and multiplying it by the length of the
time included between said periods.
2. ID.; ID.; MANAGING PARTNER; HIS
AUTHORITY; RECEIVER. — When to prevent a receiver from taking charge of a
business in dissolution, the managing partner gives a bond and continues the
business, he ceases to be managing partner from that time in order to become
receiver; and while before that date the property was liable for his acts, yet
that is not the case with his subsequent acts, which are regulated by the
provisions of section 175 of the Code of Civil Procedure, and without express
judicial authority he cannot continue the business of the partnership, being
personally liable for the losses should he do so. (34 Cyc., 296.)
D E C I S I O N
VILLA-REAL, J p:
During the Spanish regime the Chinamen
Go-Lio and Vicente Go-Sengco formed a society for the Purchase and sale of
articles of commerce, and for this purpose they opened a store in the town of
San Isidro, Nueva Ecija. Later Go-Lio went to China. Vicente Go-Sengco died and
his son Enrique Ortega Go-Cotay took charge of the business. Go-Lio died in
China in October, 1916, leaving a widow and three children, one of whom came to
the Philippines and filed a petition for the appointment of Ildefonso de la
Rosa as administrator of the intestate estate of his deceased father, which
petition was granted by the Court of First Instance of Nueva Ecija. Ildefonso
de la Rosa, in his capacity as administrator of the intestate estate of the
deceased Go-Lio, requested Enrique Ortega Go-Cotay to wind up the business and
to deliver to him the portion corresponding to the deceased Go-Lio. Enrique
Ortega Go-Cotay denied the petition, alleging that the business was his
exclusively. In view of this denial, Ildefonso de la Rosa, as administrator, on
July 2, 1918, filed with the Court of First Instance of Nueva Ecija a complaint
against Enrique Ortega Go-Cotay in which he prayed that the defendant be
sentenced to deliver to the plaintiff one-half of all the property of the
partnership formed by Go-Lio and Vicente Go-Sengco, with costs against the
defendant, and that the said plaintiff be appointed receiver for the property
of the said partnership.
Defendant, in answering the complaint,
denied each and every allegation thereof, and as a special defense alleged that
more than ten years had elapsed before the filing of the complaint, and prayed
that he be absolved therefrom, with costs against the plaintiff.
On August 3, 1918, the Court of First
Instance of Nueva Ecija appointed Justo Cabo-Chan, Francisco T. Tantengco and
Go-Tiao, as commissioners to make an inventory, liquidate and determine the
one-half belonging to the plaintiff of all of the property of the store in
question.
On August 9, 1918, in order to prevent
Justo Cabo-Chan from assuming the office of receiver, pursuant to the order of
the court dated August 3, 1918, the defendant filed a bond in the sum of
P10,000.
Under the date of November 15, 1920, the
said commissioners submitted to the court their report, showing the net profits
of the business between the period from 1913 to 1917, which amounted to the
total sum of P25,038.70 and consisted of the following items:
Profits for the year 1913 2,979.00
Profits for the year 1914 3,046.94
Profits for the year 1915 4,103.07
Profits for the year 1916 4,736.00
Profits for the year 1917 10,174.69
————
Total 25,038.70
In view of the appeal taken by defendant
the parties on December 7, 1921, entered into an agreement whereby they agreed
to suspend the liquidation ordered by the court until the appeal to the Supreme
Court was decided, and whereby the defendant was authorized to continue in the
possession of the property in litigation, upon the giving of a bond in the
amount of P25,000, and cancelling the former bond for P10,000.
This court in deciding case R. G. No.
18919, on October 5, 1922, held that the appeal was premature and ordered that
the record be remanded to the court of origin with instruction to enter a final
order in accordance with the liquidation made by the commissioners.
The record having been remanded and two of
the commissioners having filed their resignations, the court below appointed
again Justo Cabo-Chan suggested by the defendant and Cua Poco suggested by the
plaintiff, as commissioners, who submitted two reports, one prepared by
commissioners Tantengco and Cua Poco, and the other by commissioner Justo
Cabo-Chan. The former stated in their report that they had examined the books
for the years 1919 to 1922, for the reason, they said, that they appeared
"to have been prepared by some person in a careful way at a certain
time." The latter commissioner examined all the books and stated in his
report that the business had suffered a net loss amounting to the sum of
P89,099.22.
After trial and the parties having
introduced all their evidence, the lower court, by order of December 13, 1924,
disapproved the report of the commissioners Tantengco and Cua Poco, but
approved, with slight modifications, the report of commissioner Cabo-Chan,
holding that the result of the liquidation showed liabilities to the amount of
P89,690.45 in view of which plaintiff had nothing to recover from defendant, as
there was no profit to divide.
From this decision the plaintiff has
appealed in due time and form making the following assignment of errors: (1)
The lower court erred in holding that the books were authentic, and in not
holding that they were false books exhibited by the defendant about alleged
operations in the years 1918 et seq. which show enormous debts and imaginary
losses of the business; (2) the lower court erred in giving full credit to the
testimony of commissioner Justo Cabo-Chan; (3) the lower court erred in holding
that the partnership had incurred debts and suffered losses, as shown in the
report of Justo Cabo-Chan from 1518 on; (4) the lower court erred in not
holding that the share of the plaintiff, as his capital and profits until the
end of 1917, is equivalent to the sum of twenty-seven thousand seven hundred
fifty-five pesos and forty-seven centavos (P27,755.47), Philippine currency,
plus an annual quota of at least two thousand five hundred three pesos and
eighty-seven centavos (P2,503.87), Philippine currency, as his portion of the
profits since the beginning of 1918 until the delivery to the plaintiff of his
share in the partnership; (5) the court below erred in not ordering the
prosecuting attorney to commence an investigation as to the falsified books of
accounts that the defendant had exhibited for proper criminal proceeding.
From the evidence it appears that the
partnership capital was P4,779.39, and the net profits until the year 1915
amounted to P5,551.40. Because some books of account had been destroyed by
white ants (anay), the liquidation of the business of the partnership for the
period from 1906 to 1912 could not be made. But knowing the net profit for the
period between 1904 and 1905, which is P5,551.40, and finding the average of
the profits for each of these years, which is P2,775.70; and knowing the net
profit for the year 1913, which is P2,979, we can find the average between the
net profit for 1905, namely, P2,275.70, and the net profit for the said year
1913, namely, P2,979. Said average is the sum of P2,877.35, which may be
considered as the average of the net annual profits for the period between 1906
and 1912, which in seven years make a total of P20,141.45. The assets of the
partnership, as well as the value of its property, could not be determined when
making the liquidation because there was no inventory and for this reason it
was not possible to determine the capital of the partnership. The plaintiff,
however, seems to be agreeable to considering the initial partnership capital
as the capital at the time of the winding up of the business.
August 3, 1918, defendant assumed complete
responsibility for the business by objecting to the appointment of a receiver
as prayed for by the plaintiff, and giving a bond therefor. Until that date his
acts were those of a managing partner, binding against the partnership; but
thereafter his acts were those of a receiver whose authority is contained in
section 175 of the Code of Civil Procedure.
A receiver has no right to carry on and
conduct a business unless he is authorized or directed by the court to do so,
and such authority is not derived from an order of appointment to take and
preserve the property (34 Cyc., 283; 23 R. C. L., 73). It does not appear that
the defendant as a receiver was authorized by the court to continue the
business of the partnership in liquidation. This being so, he is personally
liable for the losses that the business may have sustained. (34 Cyc., 296.) The
partnership must not, therefore, be liable for the acts of the defendant in
connection with the management of the business until August 3, 1918, the date
when he ceased to be a member and manager in order to become receiver.
As to the first semester of 1918, during
which time the defendant had been managing the business of the partnership as a
member and manager, taking into account that the profits had been on the
increase, said profits having reached the amount of P10,174.69 in the year
1917, it would not be an exaggeration to estimate that the profits for 1918
would have been at least the same as the profits of 1917; so that for the first
half of 1918, the profit would be P5,087.34.
In conclusion we have the following profits
of the business of this partnership now in liquidation, to wit:
Capital of partnership 4,779.39
Profits until 190 5,651.40
Profits 1906-1912 20,141.4
Profits 1913-1917 25,038.70
Profits first semester 1918 6,087.34
————
Total 60,598.28
One-half of this total, that is, P30,299.14
pertains to the plaintiff as administrator of the intestate estate of Go-Lio.
In view of the foregoing, we are of the
opinion that the case must be, as is hereby, decided by reversing the judgment
appealed from, and sentencing the defendant to pay the plaintiff the sum of
P30,299.14 with legal interest at the rate of 6 per cent per annum from July 1,
1918, until fully paid, with the costs. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm,
Villamor, Ostrand, Johns and Romualdez, JJ., concur.
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