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HEIRS OF TAN ENG KEE VS.

COURT OF APPEALS
341 SCRA 740. October 3, 2000
J. De Leon, Jr.

FACTS:
After the Second World War, Tan Eng Kee and Tan Eng Lay,
pooling their resources and industry together, entered into a partnership
engaged in the business of selling lumber and hardware and construction
supplies and named their enterprise "Benguet Lumber" which they jointly
managed until Tan Eng Kee's death. They claimed, however, that in 1981,
Tan Eng Lay and his children caused the conversion of the partnership
"Benguet Lumber" into a corporation called "Benguet Lumber
Company." The incorporation was purportedly a ruse to deprive Tan Eng
Kee and his heirs of their rightful participation in the profits of the
business. Petitioners prayed for accounting of the partnership assets, and
the dissolution, winding up and liquidation thereof, and the equal division
of the net assets of Benguet Lumber. The RTC ruled in favor of the
petitioner.
Tan Eng Lay filed a petition in the CA claiming that there was no
partnership between him and his brother as there was no certificate of
partnership, agreements, or other evidence of the partnership's existence.
He further alleged that Tan Eng Kee was merely an employee of Benguet
Lumber as shown in copies of his payroll and SSS, which states that he
was an employee of the same. The heirs of Tan Eng Kee then filed a
criminal case against Tan Eng Lay on the ground of fabricating the said
evidence presented as they contradictory. The criminal case was
dismissed for lack of merit.

ISSUE:
Whether or not Tan Eng Kee was a partner

HELD:
No, Tan Eng Kee was not a partner to Benguet Lumber was merely
an employee of the same. There being no partnership, there is no
dissolution, winding up or liquidation. Petition dismissed.

RATIO DECIDENDI:
Under Article 1767 of the Civil Code, by contract of partnership
two or more persons bind themselves to contribute money, property, or
industry to a common fund with the intention of diving the profits among
themselves. In the case present, there was no evidence to show that the
brothers had an agreement of sharing profits or any contribution of
money, property and industry. As further stated in Article 1769 paragraph
4, The receipt by a person of a share of the profits of a business is prima
facie evidence that he is a partner in the business, but no such inference
shall be drawn if such profits were received in payment: (a) As a debt by
installment or otherwise; (b) As wages of an employee or rent to a
landlord; (c) As an annuity to a widow or representative of a deceased
partner; (d) As interest on a loan, though the amount of payment vary
with the profits of the business; (e) As the consideration for the sale of a
goodwill of a business or other property by installments or otherwise.