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JOSE FERNANDEZ, plaintiff-appellant, vs. FRANCISCO DE LA ROSA, defendant-appellee.

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G.R. No. 413 February 2, 1903
JOSE FERNANDEZ, plaintiff-appellant,
vs.
FRANCISCO DE LA ROSA, defendant-appellee.
Vicente Miranda, for appellant.
Simplicio del Rosario, for appellee.
LADD, J.:
The object of this action is to obtain from the court a declaration that a partnership exists between
the parties, that the plaintiff has a consequent interested in certain cascoes which are alleged to be
partnership property, and that the defendant is bound to render an account of his administration of
the cascoes and the business carried on with them.
Judgment was rendered for the defendant in the court below and the plaintiff appealed.
The respective claims of the parties as to the facts, so far as it is necessary to state them in order to
indicate the point in dispute, may be briefly summarized. The plaintiff alleges that in January, 1900,
he entered into a verbal agreement with the defendant to form a partnership for the purchase of
cascoes and the carrying on of the business of letting the same for hire in Manila, the defendant to
buy the cascoes and each partner to furnish for that purpose such amount of money as he could, the
profits to be divided proportionately; that in the same January the plaintiff furnished the defendant
300 pesos to purchase a casco designated as No. 1515, which the defendant did purchase for 500
pesos of Doña Isabel Vales, taking the title in his own name; that the plaintiff furnished further sums
aggregating about 300 pesos for repairs on this casco; that on the fifth of the following March he
furnished the defendant 825 pesos to purchase another casco designated as No. 2089, which the
defendant did purchase for 1,000 pesos of Luis R. Yangco, taking the title to this casco also in his
own name; that in April the parties undertook to draw up articles of partnership for the purpose of
embodying the same in an authentic document, but that the defendant having proposed a draft of
such articles which differed materially from the terms of the earlier verbal agreement, and being
unwillingly to include casco No. 2089 in the partnership, they were unable to come to any
understanding and no written agreement was executed; that the defendant having in the meantime
had the control and management of the two cascoes, the plaintiff made a demand for an accounting
upon him, which the defendant refused to render, denying the existence of the partnership
altogether.
The defendant admits that the project of forming a partnership in the casco business in which he
was already engaged to some extent individually was discussed between himself and the plaintiff in
January, 1900, and earlier, one Marcos Angulo, who was a partner of the plaintiff in a bakery
business, being also a party to the negotiations, but he denies that any agreement was ever
consummated. He denies that the plaintiff furnished any money in January, 1900, for the purchase of
casco No. 1515, or for repairs on the same, but claims that he borrowed 300 pesos on his individual
account in January from the bakery firm, consisting of the plaintiff, Marcos Angulo, and Antonio
Angulo. The 825 pesos, which he admits he received from the plaintiff March 5, he claims was for
the purchase of casco No. 1515, which he alleged was bought March 12, and he alleges that he
never received anything from the defendant toward the purchase of casco No. 2089. He claims to
have paid, exclusive of repairs, 1,200 pesos for the first casco and 2,000 pesos for the second one.
The case comes to this court under the old procedure, and it is therefore necessary for us the review
the evidence and pass upon the facts. Our general conclusions may be stated as follows:

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(1) Doña Isabel Vales, from whom the defendant bought casco No. 1515, testifies that the sale was
made and the casco delivered in January, although the public document of sale was not executed till
some time afterwards. This witness is apparently disinterested, and we think it is safe to rely upon
the truth of her testimony, especially as the defendant, while asserting that the sale was in March,
admits that he had the casco taken to the ways for repairs in January.
It is true that the public document of sale was executed March 10, and that the vendor declares
therein that she is the owner of the casco, but such declaration does not exclude proof as to the
actual date of the sale, at least as against the plaintiff, who was not a party to the instrument. (Civil
Code, sec. 1218.) It often happens, of course, in such cases, that the actual sale precedes by a
considerable time the execution of the formal instrument of transfer, and this is what we think
occurred here.
(2) The plaintiff presented in evidence the following receipt: "I have this day received from D. Jose
Fernandez eight hundred and twenty-five pesos for the cost of a casco which we are to purchase in
company. Manila, March 5, 1900. Francisco de la Rosa." The authenticity of this receipt is admitted
by the defendant. If casco No. 1515 was bought, as we think it was, in January, the casco referred to
in the receipt which the parties "are to purchase in company" must be casco No. 2089, which was
bought March 22. We find this to be the fact, and that the plaintiff furnished and the defendant
received 825 pesos toward the purchase of this casco, with the understanding that it was to be
purchased on joint account.
(3) Antonio Fernandez testifies that in the early part of January, 1900, he saw Antonio Angulo give
the defendant, in the name of the plaintiff, a sum of money, the amount of which he is unable to
state, for the purchase of a casco to be used in the plaintiff's and defendant's business. Antonio
Angulo also testifies, but the defendant claims that the fact that Angulo was a partner of the plaintiff
rendered him incompetent as a witness under the provisions of article 643 of the then Code of Civil
Procedure, and without deciding whether this point is well taken, we have discarded his testimony
altogether in considering the case. The defendant admits the receipt of 300 pesos from Antonio
Angulo in January, claiming, as has been stated, that it was a loan from the firm. Yet he sets up the
claim that the 825 pesos which he received from the plaintiff in March were furnished toward the
purchase of casco No. 1515, thereby virtually admitting that casco was purchased in company with
the plaintiff. We discover nothing in the evidence to support the claim that the 300 pesos received in
January was a loan, unless it may be the fact that the defendant had on previous occasions
borrowed money from the bakery firm. We think all the probabilities of the case point to the truth of
the evidence of Antonio Fernandez as to this transaction, and we find the fact to be that the sum in
question was furnished by the plaintiff toward the purchase for joint ownership of casco No. 1515,
and that the defendant received it with the understanding that it was to be used for this purposed.
We also find that the plaintiff furnished some further sums of money for the repair of casco.
(4) The balance of the purchase price of each of the two cascoes over and above the amount
contributed by the plaintiff was furnished by the defendant.
(5) We are unable to find upon the evidence before us that there was any specific verbal agreement
of partnership, except such as may be implied from the fact as to the purchase of the casco.
(6) Although the evidence is somewhat unsatisfactory upon this point, we think it more probable than
otherwise that no attempt was made to agree upon articles of partnership till about the middle of the
April following the purchase of the cascoes.
(7) At some time subsequently to the failure of the attempt to agree upon partnership articles and
after the defendant had been operating the cascoes for some time, the defendant returned to the

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