Agency, Trusts, and Partnerships Page |1
[No. L-12541. August 28, 1959]
ROSARIO U. YULO, assisted by her husband JOSE C. YULO, plaintiffs and
appellants, vs. YANG CHIAO SENG, defendant and appellee.
1.TRIAL; ABSENCE OF ONE PARTY PURSUANT TO AGREEMENT; EFFECT ON
JUDGMENT.—If the parties to a case agreed to postpone the trial of the same in view
of a probable amicable settlement, neither of them can take advantage of the other's
absence in the hearing by appearing. therein and adducing evidence in his favor. The
judgment rendered by the Court based on such evidence should, in the interest of
justice, be set aside.
2.CONTRACTS; LEASE; CIRCUMSTANCES THAT NEGATE PARTNERSHIP.—Where one
of the parties to a contract does not contribute the capital he is supposed to
contribute to a common fund; does not furnish any help or intervention in the
management of the business subject of the contract; does not demand from the
other party an accounting of the expenses and earnings of the business; and is
absolutely silent with respect to any of the acts that a partner should have done, but,
on the other hand, receives a fixed monthly sum from the other party, there can be
no other conclusion than that the contract between the parties is one of lease and
not of partnership.
APPEAL from a judgment of the Court of First Instance of Manila. Tan, J.
The facts are stated in the opinion of the Court.
Punzalán, Yabut, Eusebio & Tiburcio for appellants.
Augusto Francisco and Julián T. Ocampo for appellee.
LABRADOR, J.:
Appeal from the judgment of the Court of First Instance of Manila, Hon. Bienvenido
A. Tan, presiding, dismissing plaintiff's complaint as well as defendant's counterclaim.
The appeal is prosecuted by plaintiff.
The record discloses that on June 17, 1945, defendant Yang Chiao Seng wrote a
letter to the plaintiff Mrs. Rosario U. Yulo, proposing the formation of a partnership
between them to run and operate a theatre on the premises occupied by former Cine
Oro at Plaza Sta. Cruz, Manila. The principal conditions of the offer are (1) that Yang
Chiao Seng guarantees Mrs. Yulo a monthly participation of P3,000, payable quarterly
in advance within the first 15 days of each quarter, (2) that the partnership shall be
for a period of two years.and six months, starting from July 1, 1945 to December 31,
1947, with the condition that if the land is expropriated or rendered impracticable for
the business, or if the owner constructs a permanent building thereon, or Mrs. Yulo's
right of lease is terminated by the owner, then the partnership shall be terminated
even if the period for which the partnership was agreed to be established has not yet
expired; (3) that Mrs. Yulo is authorized personally to conduct such business in the
lobby of the building as is ordinarily carried on in lobbies of theatres in operation,
provided the said business may not obstruct the free ingress and egrees of patrons of
the theatre; (4) that after December 31, 1947, all improvements placed by the
partnership shall belong to Mrs. Yulo, but that if the partnership agreement is
terminated before the lapse of one and a half years period under any of the causes
mentioned in paragraph (2), then Yang Chiao Seng shall have the right to remove
and take away all improvements that the partnership may place in the premises.
Pursuant to the above offer, which plaintiff evidently accepted, the parties executed a
partnership agreement establishing the "Yang & Company, Limited," which was to
exist from July 1, 1945 to December 31, 1947. It states that it will conduct and carry
on the business of operating a theatre for the exhibition of motion and talking
pictures. The capital is fixed at P100,000, P80,000 of which is to be furnished by
Yang Chiao Seng and P20,000, by Mrs. Yulo. All gains and profits are to be
distributed among the partners in the same proportion as their capital contribution,
and the liability of Mrs. Yulo, in case of loss, shall be limited to her capital
contribution (Exh. "B'").
In June, 1946, they executed a supplementary agreement, extending the partnership
for a period of three years beginning January 1, 1948 to December 31, 1950. The
benefits are to be divided between them at the rate of 50-50 and after December 31,
1950, the showhouse building shall belong exclusively to the second party, Mrs. Yulo.
The land on which the theatre was constructed was leased by plaintiff Mrs, Yulo from
Emilia Carrion Santa Marina and Maria Carrion Santa Marina. In the contract of lease
it was stipulated that the lease shall continue for an indefinite period of time, but that
after one year the lease may be cancelled by either party by written notice to the
other party at least 90 days before the date of cancellation. The last contract was
executed between the owners and Mrs. Yulo on April 5, 1948. But on April 12, 1949,
the the attorney for the owners notified Mrs. Yulo of the owner's desire to cancel the
contract of lease on July 31, 1949. In view of the above notice, Mrs. Yulo and her
husband brought a civil action in the Court of First Instance of Manila on July 3, 1949
to declare the lease of the premises one for an indefinite period. On August 17, 1949,
the owners on their part brought an action in the Municipal Court of Manila against
Mrs. Yulo and her husband and Yang Chiao Seng to eject them from the premises.
On February 9, 1950, the Municipal Court of Manila rendered judgment ordering the
ejectment of Mrs. Yulo and Mr. Yang. The judgment was appealed. In the Court of
First Instance, the two cases were afterwards heard jointly, and judgment was
rendered dismissing the complaint of Mrs. Yulo and her husband, and declaring the
contract of lease of the premises terminated as of July 31, 1949, and fixing the
reasonable monthly rentals of said premises at P100. Both parties appealed from said
decision and the Court of Appeals, on April 30, 1955, affirmed the judgment.

On October 27, 1950, Mrs. Yulo demanded from Yang Chiao Seng her share in the
profits of the business. Yang answered the letter saying that upon the advice of his
counsel he had to suspend the payment (of the rentals) because of the pendency of
the ejectment suit by the owners of the land against Mrs. Yulo. In this letter Yang
alleges that inasmuch as he is a sublessee and inasmuch as Mrs. Yulo has not paid to
the lessors the rentals from August, 1949, he was retaining the rentals to make good
to the landowners the rentals due from Mrs. Yulo in arrears (Exh. "E").
In view of the ref usal of Yang to pay to her the amount agreed upon, Mrs. Yulo
instituted this action on May 26, 1954, alleging the existence of a partnership
between them, and that defendant Yang Chiao Seng has refused to pay her share
from December, 1949 to December, 1950; that after December 31, 1950 the
partnership between Mrs. Yulo and Yang terminated, as a result of which, plaintiff
became the absolute owner of the building occupied by the Cine Astor; that the
reasonable rental that the defendant should pay therefor from January, 1951 is
P5,000; that the defendant has acted maliciously and refuses to pay the participation
of the plaintiff in the profits of the business amounting to P35,000 from November,
1949 to October, 1950, and that as a result of such bad faith and malice, on the part
of the defendant, Mrs. Yulo has suffered damages in the amount of P160,000 and
exemplary damages to the extent of P5,000. The prayer includes a demand for the
payment of the above sums plus the sum of P10,000 for attorney's fees.
In answer to the complaint, defendant alleges that the real agreement between the
plaintiff and the defendant was one of lease and not of partnership; that the
partnership was adopted as a subterfuge to get around the prohibition contained in
the contract of lease between the owners and the plaintiff against the sublease of the
said property. As to the other claims, he denies the same and alleges that the fair
rental value of the land is only P1,100. By way of counterclaim he alleges that by
reason of an attachment issued against the properties of the defendant the latter has
suffered damages amounting to P100,000.
The first hearing was had on April 19, 1955, at which time only the plaintiff appeared.
The court heard evidence of the plaintiff in the absence of the defendant and
thereafter rendered judgment ordering the defendant to pay to the plaintiff P41,000
for her .participation in the business up to December, 1950; P5,000 as monthly rental
for the use and occupation of the building from January 1, 1951 until defendant
vacates the same, and P300 for the use and occupation of the lobby from July 1,
1945 until defendant vacates the property. This decision, however, was set aside on a
motion for reconsideration. In said motion it is claimed that defendant failed to
appear at the hearing because of his honest belief that a joint petition for
postponement filed by both parties, in view of a possible amicable settlement, would
be granted; that in view of the decision of the Court of Appeals in two previous cases
between the owners of the land and the plaintiff Rosario Yulo, the plaintiff has no
right to claim the alleged participation in the profits of the business, etc. The court,
Agency, Trusts, and Partnerships Page |2
finding the above motion well-founded, set aside its decision and a new trial was
held. After trial the court rendered the decision making the following findings: that it
is not true that a partnership was created between the plaintiff and the defendant
because defendant has not actually contributed the sum mentioned in the Articles of
Partnership, or any other amount; that the real agreement between the plaintiff and
the defendant is not one of partnership but one of lease for the reason that under the
agreement the plaintiff did not share either in the profits or in the losses of the
business as required by Article 1769 of the Civil Code; and that the fact that plaintiff
was granted a "guaranteed participation" in the profits also belies the supposed
existence of a partnership between them. It, therefore, denied plaintiff's claim for
damages or supposed participation in the profits.
As to her claim for damages for the refusal of the defendant to allow the use of the
supposed lobby of the theatre, the court after ocular inspection found that the said
lobby was a very narrow space leading to the balcony of the theatre which could not
be used for business purposes under existing ordinances of the City of Manila
because it would constitute a hazard and danger to the patrons of the theatre. The
court, therefore, dismissed the complaint; so did it dismiss the defendant's
counterclaim, on the ground that defendant failed to present sufficient evidence to
sustain the same. It is against this decision that the appeal has been prosecuted by
plaintiff to this Court.
The first assignment of error imputed to the trial court is its order setting aside its
former decision and allowing a new trial. This assignment of error is without merit. As
the parties had agreed to postpone the trial because of a probable amicable
settlement, the plaintiff could not take advantage of defendant's absence at the time
fixed for the hearing. The lower court, therefore, did not err in setting aside its
former judgment. The final result of the hearing shown by the decision indicates that
the setting aside of the previous decision was in the interest of justice.
In the second assignment of error plaintiff-appellant claims that the lower court erred
in not striking out the evidence offered by defendant-appellee to prove that the
relation between him and the plaintiff is one of sublease and not of partnership. The
action of the lower court in admitting evidence is justified by the express allegation in
the defendant's answer that the agreement set forth in the complaint was one of
lease and not of partnership, and that the partnership formed was adopted in view of
a prohibition contained in plaintiff's lease against a sublease of the property.
The most important issue raised in the appeal is that contained in the fourth
assignment of error, to the effect that the lower court erred in holding that the
written contracts, Exhs. "A", "B", and "C', between plaintiff and defendant, are one of
lease and not one of partnership. We have gone over the evidence and we fully agree
with the conclusion of the trial court that the agreement was a sublease, not a
partnership. The following are the requisites of partnership: (1) two or more persons
who bind themselves to contribute money, property, or industry to a common fund;
 Agency, Trusts, and Partnerships Page |3

(2) intention on the part of the partners to divide the profits among themselves. (Art.
1767, Civil Code.)

In the first place, plaintiff did not furnish the supposed P20,000 capital. In the second
place, she did not furnish any help or intervention in the management of the theatre.
In the third place, it does not appear that she has ever demanded from defendant
any accounting of the expenses and earnings of the business. Were she really a
partner, her first concern should have been to find out how the business was
progressing, whether the expenses were legitimate, whether the earnings were
correct, etc. She was absolutely silent with respect to any of the acts that a partner
should have done; all that she did was to receive her share of P3,000 a month, which
can not be interpreted in any manner than a payment for the use of the premises
which she had leased from the owners. Clearly, plaintiff had always acted in
accordance with the original letter of defendant of June 17, 1945 (Exh. "A"), which
shows that both parties considered this offer as the real contract between them.

Plaintiff claims the sum of P41,000 as representing her share or participation in the
business f rom December, 1949. But the original letter of the defendant, Exh. "A",
expressly states that the agreement between the plaintiff and the defendant was to
end upon the termination of the right of the plaintiff to the lease. Plaintiff's right
having terminated in July, 1949 as found by the Court of Appeals, the partnership
agreement or the agreement for her to receive a participation of P3,000 automatically
ceased as of said date.

We find no error in the judgment of the court below and we affirm it in toto, with
costs against plaintiff-appellant.

Parás, C. J., Padilla, Bautista Angelo, Endencia, and Barrera, JJ., concur.

Judgment affirmed.

G.R. No. 159333. July 31, 2006.*
ARSENIO T. MENDIOLA, petitioner, vs. COURT OF APPEALS, NATIONAL
LABOR RELATIONS COMMISSION, PACIFIC FOREST RESOURCES, PHILS.,
INC. and/or CELLMARK AB, respondents.
Partnership; In a partnership, the members become co-owners of what is contributed
to the firm capital and of all property that may be acquired thereby and through the
efforts of the members; Each partner possesses a joint interest in the whole of
partnership property; If the relation does not have this feature, it is not one of
partnership.—In a partnership, the members become co-owners of what is
contributed to the firm capital and of all property that may be acquired thereby and
through the efforts of the members. The property or stock of the partnership forms a
community of goods, a common fund, in which each party has a proprietary interest.
In fact, the New Civil Code regards a partner as a co-owner of specific partnership
property. Each partner possesses a joint interest in the whole of partnership property.
If the relation does not have this feature, it is not one of partnership. This essential
element, the community of interest, or co-ownership of, or joint interest in
partnership property is absent in the relations between petitioner and private
respondent Pacfor. Petitioner is not a part-owner of Pacfor Phils. William Gleason,
private respondent Pacfor’s President established this fact when he said that Pacfor
Phils. is simply a “theoretical company” for the purpose of dividing the income 50-50.
He stressed that petitioner knew of this arrangement from the very start, having been
the one to propose to private respondent Pacfor the setting up of a representative
office, and “not a branch office” in the Philippines to save on taxes. Thus, the parties
in this case, merely shared profits. This alone does not make a partnership.
Labor Law; Employer-Employee Relationship; The principal consideration is whether
the employer has the right to control the manner of doing the work, and it is not the
actual exercise of the right by interfering with the work, but the right to control,
which constitutes the test of the existence of an employer-employee relationship.—
The power of control refers merely to the existence of the power, and not to the
actual exercise thereof. The principal consideration is whether the employer has the
right to control the manner of doing the work, and it is not the actual exercise of the
right by interfering with the work, but the right to control, which constitutes the test
of the existence of an employer-employee relationship. In the case at bar, private
respondent Pacfor, as employer, clearly possesses such right of control. Petitioner, as
private respondent Pacfor’s resident agent in the Philippines, is, exactly so, only an
agent of the corporation, a representative of Pacfor, who transacts business, and
accepts service on its behalf.
Employer-Employee Relationship; Constructive Dismissals; Although there is no
reduction of the salary of petitioner, constructive dismissal is still present because
continued employment of petitioner is rendered, at the very least, unreasonable.—
Agency, Trusts, and Partnerships Page |4
Although there is no reduction of the salary of petitioner, constructive dismissal is still
present because continued employment of petitioner is rendered, at the very least,
unreasonable. There is an act of clear discrimination, insensibility or disdain by the
employer that continued employment may become so unbearable on the part of the
employee so as to foreclose any choice on his part except to resign from such
employment.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
   The facts are stated in the opinion of the Court.
  Felipe S. Velasquez for petitioner.
  Vissia Concepcion C. Calderon for respondent Pacific Forest Resources Phils., Inc.
PUNO, J.:
On appeal are the Decision1 and Resolution2 of the Court of Appeals, dated January
30, 2003 and July 30, 2003, respectively, in CA-G.R. SP No. 71028, affirming the
ruling3 of the National Labor Relations Commission (NLRC), which in turn set aside
the July 30, 2001 Decision4 of the labor arbiter. The labor arbiter declared illegal the
dismissal of petitioner from employment and awarded separation pay, moral and
exemplary damages, and attorney’s fees.
The facts are as follows:
Private respondent Pacific Forest Resources, Phils., Inc. (Pacfor) is a corporation
organized and existing under the laws of California, USA. It is a subsidiary of
Cellulose Marketing International, a corporation duly organized under the laws of
Sweden, with principal office in Gothenburg, Sweden.
Private respondent Pacfor entered into a “Side Agreement on Representative Office
known as Pacific Forest Resources (Phils.), Inc.”5 with petitioner Arsenio T. Mendiola
(ATM), effective May 1, 1995, “assuming that Pacfor-Phils. is already approved by the
Securities and Exchange Commission [SEC] on the said date.”6 The Side Agreement
outlines the business relationship of the parties with regard to the Philippine
operations of Pacfor. Private respondent will establish a Pacfor representative office in
the Philippines, to be known as Pacfor Phils, and petitioner ATM will be its President.
Petitioner’s base salary and the overhead expenditures of the company shall be borne
by the representative office and funded by Pacfor/ATM, since Pacfor Phils. is equally
owned on a 50-50 equity by ATM and Pacfor-USA.
On July 14, 1995, the SEC granted the application of private respondent Pacfor for a
license to transact business in the Philippines under the name of Pacfor or Pacfor
Phils.7 In its application, private respondent Pacfor proposed to establish its
representative office in the Philippines with the purpose of monitoring and

coordinating the market activities for paper products. It also designated petitioner as
its resident agent in the Philippines, authorized to accept summons and processes in
all legal proceedings, and all notices affecting the corporation.8
In March 1997, the Side Agreement was amended through a “Revised Operating and
Profit Sharing Agreement for the Representative Office Known as Pacific Forest
Resources (Philippines),”9 where the salary of petitioner was increased to $78,000
per annum. Both agreements show that the operational expenses will be borne by
the representative office and funded by all parties “as equal partners,” while the
profits and commissions will be shared among them.
In July 2000, petitioner wrote Kevin Daley, Vice President for Asia of Pacfor, seeking
confirmation of his 50% equity of Pacfor Phils.10 Private respondent Pacfor, through
William Gleason, its President, replied that petitioner is not a part-owner of Pacfor
Phils. because the latter is merely Pacfor-USA’s representative office and not an entity
separate and distinct from Pacfor-USA. “It’s simply a ‘theoretical company’ with the
purpose of dividing the income 50-50.”11 Petitioner presumably knew of this
arrangement from the start, having been the one to propose to private respondent
Pacfor the setting up of a representative office, and “not a branch office” in the
Philippines to save on taxes.12
Petitioner claimed that he was all along made to believe that he was in a joint
venture with them. He alleged he would have been better off remaining as an
independent agent or representative of Pacfor-USA as ATM Marketing Corp.13 Had he
known that no joint venture existed, he would not have allowed Pacfor to take the
profitable business of his own company, ATM Marketing Corp.14 Petitioner raised
other issues, such as the rentals of office furniture, salary of the employees, company
car, as well as commissions allegedly due him. The issues were not resolved, hence,
in October 2000, petitioner wrote Pacfor-USA demanding payment of unpaid
commissions and office furniture and equipment rentals, amounting to more than one
million dollars.15
On November 27, 2000, private respondent Pacfor, through counsel, ordered
petitioner to turn over to it all papers, documents, files, records, and other materials
in his or ATM Marketing Corporation’s possession that belong to Pacfor or Pacfor
Phils.16 On December 18, 2000, private respondent Pacfor also required petitioner to
remit more than three hundred thousand-peso Christmas giveaway fund for clients of
Pacfor Phils.17 Lastly, private respondent Pacfor withdrew all its offers of settlement
and ordered petitioner to transfer title and turn over to it possession of the service
car.18
Private respondent Pacfor likewise sent letters to its clients in the Philippines, advising
them not to deal with Pacfor Phils. In its letter to Intercontinental Paper Industries,
Inc., dated November 21, 2000, private respondent Pacfor stated:
Agency, Trusts, and Partnerships Page |5
Until further notice, please course all inquiries and communications for Pacific Forest
Resources (Philippines) to:
Pacific Forest Resources
200 Tamal Plaza, Suite 200
Corte Madera, CA, USA 94925
(415) 927 1700 phone
(415) 381 4358 fax
Please do not send any communication to Mr. Arsenio “Boy” T. Mendiola or to the
offices of ATM Marketing Corporation at Room 504, Concorde Building, Legaspi
Village, Makati City, Philippines.19
In another letter addressed to Davao Corrugated Carton Corp. (DAVCOR), dated
December 2000, private respondent directed said client “to please communicate
directly with us on any further questions associated with these payments or any
future business. Do not communicate with [Pacfor] and/or [ATM].”20
Petitioner construed these directives as a severance of the “unregistered partnership”
between him and Pacfor, and the termination of his employment as resident manager
of Pacfor Phils.21 In a memorandum to the employees of Pacfor Phils., dated January
29, 2001, he stated:
I received a letter from Pacific Forest Resources, Inc. demanding the turnover of all
records to them effective December 19, 2000. The company records were turned
over only on January 26, 2001. This means our jobs with Pacific Forest were
terminated effective December 19, 2000. I am concerned about your welfare. I would
like to help you by offering you to work with ATM Marketing Corporation.
Please let me know if you are interested.22
On the basis of the “Side Agreement,” petitioner insisted that he and Pacfor equally
own Pacfor Phils. Thus, it follows that he and Pacfor likewise own, on a 50/50 basis,
Pacfor Phils.’ office furniture and equipment and the service car. He also reiterated
his demand for unpaid commissions, and proposed to offset these with the remaining
Christmas giveaway fund in his possession.23 Furthermore, he did not renew the
lease contract with Pulp and Paper, Inc., the lessor of the office premises of Pacfor
Phils., wherein he was the signatory to the lease agreement.24
On February 2, 2001, private respondent Pacfor placed petitioner on preventive
suspension and ordered him to show cause why no disciplinary action should be
taken against him. Private respondent Pacfor charged petitioner with willful
disobedience and serious misconduct for his refusal to turn over the service car and

the Christmas giveaway fund which he applied to his alleged unpaid commissions.
Private respondent also alleged loss of confidence and gross neglect of duty on the
part of petitioner for allegedly allowing another corporation owned by petitioner’s
relatives, High End Products, Inc. (HEPI), to use the same telephone and facsimile
numbers of Pacfor, to possibly steal and divert the sales and business of private
respondent for HEPI’s principal, International Forest Products, a competitor of private
respondent.25
Petitioner denied the charges. He reiterated that he considered the import of Pacfor
President William Gleason’s letters as a “cessation of his position and of the existence
of Pacfor Phils.” He likewise informed private respondent Pacfor that ATM Marketing
Corp. now occupies Pacfor Phils.’ office premises,26 and demanded payment of his
separation pay.27 On February 15, 2001, petitioner filed his complaint for illegal
dismissal, recovery of separation pay, and payment of attorney’s fees with the
NLRC.28
In the meantime, private respondent Pacfor lodged fresh charges against petitioner.
In a memorandum dated March 5, 2001, private respondent directed petitioner to
explain why he should not be disciplined for serious misconduct and conflict of
interest. Private respondent charged petitioner anew with serious misconduct for the
latter’s alleged act of fraud and misrepresentation in authorizing the release of an
additional peso salary for himself, besides the dollar salary agreed upon by the
parties. Private respondent also accused petitioner of disloyalty and representation of
conflicting interests for having continued using the Pacfor Phils.’ office for operations
of HEPI. In addition, petitioner allegedly solicited business for HEPI from a competitor
company of private respondent Pacfor.29
Labor Arbiter Felipe Pati ruled in favor of petitioner, finding there was constructive
dismissal. By directing petitioner to turn over all office records and materials,
regardless of whether he may have retained copies, private respondent Pacfor
virtually deprived petitioner of his job by the gradual diminution of his authority as
resident manager. Petitioner’s position as resident manager whose duty, among
others, was to maintain the security of its business transactions and communications
was rendered meaningless. The dispositive portion of the decision of the Labor
Arbiter reads:
“WHEREFORE, premises considered, judgment is hereby rendered ordering herein
respondents Cellmark AB and Pacific Forest Resources, Inc., jointly and severally to
compensate complainant Arsenio T. Mendiola separation pay equivalent to at least
one month for every year of service, whichever is higher (sic), as reinstatement is no
longer feasible by reason of the strained relations of the parties equivalent to five (5)
months in the amount of $32,000.00 plus the sum of P250,000.00; pay complainant
the sum of P500,000.00 as moral and exemplary damages and ten percent (10%) of
the amounts awarded as and for attorney’s fees.
Agency, Trusts, and Partnerships Page |6
All other claims are dismissed for lack of basis.
SO ORDERED.”30
Private respondent Pacfor appealed to the NLRC which ruled in its favor. On
December 20, 2001, the NLRC set aside the July 30, 2001 decision of the labor
arbiter, for lack of jurisdiction and lack of merit.31 It held there was no employer-
employee relationship between the parties. Based on the two agreements between
the parties, it concluded that petitioner is not an employee of private respondent
Pacfor, but a full co-owner (50/50 equity). The NLRC denied petitioner’s Motion for
Reconsideration.32
Petitioner was not successful on his appeal to the Court of Appeals. The appellate
court upheld the ruling of the NLRC.
Petitioner’s Motion for Reconsideration33 of the decision of the Court of Appeals was
denied.Hence, this appeal.34
Petitioner assigns the following errors:
A. THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR AND
ABUSED ITS DISCRETION IN RENDERING JUDGMENT AGAINST PETITIONER SINCE
JURISDICTION HAS BEEN ACQUIRED OVER THE SUBJECT MATTER OF THE CASE AS
THERE EXISTS EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE PARTIES.
B. THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR AND
ABUSED ITS DISCRETION IN RULING THAT JURISDICTION OVER THE SUBJECT
MATTER CANNOT BE WAIVED AND MAY BE ALLEGED EVEN FOR THE FIRST TIME ON
APPEAL OR CONSIDERED BY THE COURT MOTU PROP[R]IO.35
The first issue is whether an employer-employee relationship exists between
petitioner and private respondent Pacfor.
Petitioner argues that he is an industrial partner of the partnership he formed with
private respondent Pacfor, and also an employee of the partnership. Petitioner insists
that an industrial partner may at the same time be an employee of the partnership,
provided there is such an agreement, which, in this case, is the “Side Agreement” and
the “Revised Operating and Profit Sharing Agreement.” The Court of Appeals denied
the appeal of petitioner, holding that “the legal basis of the complaint is not
employment but perhaps partnership, co-ownership, or independent contractorship.”
Hence, the Labor Code cannot apply.
We hold that petitioner is an employee of private respondent Pacfor and that no
partnership or co-ownership exists between the parties.

In a partnership, the members become co-owners of what is contributed to the firm
capital and of all property that may be acquired thereby and through the efforts of
the members.36
The property or stock of the partnership forms a community of goods, a common
fund, in which each party has a proprietary interest.37 In fact, the New Civil Code
regards a partner as a co-owner of specific partnership property.38 Each partner
possesses a joint interest in the whole of partnership property. If the relation does
not have this feature, it is not one of partnership.39 This essential element, the
community of interest, or co-ownership of, or joint interest in partnership property is
absent in the relations between petitioner and private respondent Pacfor. Petitioner is
not a part-owner of Pacfor Phils. William Gleason, private respondent Pacfor’s
President established this fact when he said that Pacfor Phils. is simply a “theoretical
company” for the purpose of dividing the income 50-50. He stressed that petitioner
knew of this arrangement from the very start, having been the one to propose to
private respondent Pacfor the setting up of a representative office, and “not a branch
office” in the Philippines to save on taxes. Thus, the parties in this case, merely
shared profits. This alone does not make a partnership.40
Besides, a corporation cannot become a member of a partnership in the absence of
express authorization by statute or charter.41 This doctrine is based on the following
considerations: (1) that the mutual agency between the partners, whereby the
corporation would be bound by the acts of persons who are not its duly appointed
and authorized agents and officers, would be inconsistent with the policy of the law
that the corporation shall manage its own affairs separately and exclusively; and, (2)
that such an arrangement would improperly allow corporate property to become
subject to risks not contemplated by the stockholders when they originally invested in
the corporation.42 No such authorization has been proved in the case at bar.
Be that as it may, we hold that on the basis of the evidence, an employer-employee
relationship is present in the case at bar. The elements to determine the existence of
an employment relationship are: (a) the selection and engagement of the employee;
(b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power
to control the employee’s conduct. The most important element is the employer’s
control of the employee’s conduct, not only as to the result of the work to be done,
but also as to the means and methods to accomplish it.43
In the instant case, all the foregoing elements are present. First, it was private
respondent Pacfor which selected and engaged the services of petitioner as its
resident agent in the Philippines. Second, as stipulated in their Side Agreement,
private respondent Pacfor pays petitioner his salary amounting to $65,000 per annum
which was later increased to $78,000. Third, private respondent Pacfor holds the
power of dismissal, as may be gleaned through the various memoranda it issued
against petitioner, placing the latter on preventive suspension while charging him
with various offenses, including willful disobedience, serious misconduct, and gross
Agency, Trusts, and Partnerships Page |7
neglect of duty, and ordering him to show cause why no disciplinary action should be
taken against him.
Lastly and most important, private respondent Pacfor has the power of control over
the means and method of petitioner in accomplishing his work.
The power of control refers merely to the existence of the power, and not to the
actual exercise thereof. The principal consideration is whether the employer has the
right to control the manner of doing the work, and it is not the actual exercise of the
right by interfering with the work, but the right to control, which constitutes the test
of the existence of an employer-employee relationship.44 In the case at bar, private
respondent Pacfor, as employer, clearly possesses such right of control. Petitioner, as
private respondent Pacfor’s resident agent in the Philippines, is, exactly so, only an
agent of the corporation, a representative of Pacfor, who transacts business, and
accepts service on its behalf.
This right of control was exercised by private respondent Pacfor during the period of
November to December 2000, when it directed petitioner to turn over to it all records
of Pacfor Phils.; when it ordered petitioner to remit the Christmas giveaway fund
intended for clients of Pacfor Phils.; and, when it withdrew all its offers of settlement
and ordered petitioner to transfer title and turn over to it the possession of the
service car. It was also during this period when private respondent Pacfor sent letters
to its clients in the Philippines, particularly Intercontinental Paper Industries, Inc. and
DAVCOR, advising them not to deal with petitioner and/or Pacfor Phils. In its letter to
DAVCOR, private respondent Pacfor replied to the client’s request for an invoice
payment extension, and formulated a revised payment program for DAVCOR. This is
one unmistakable proof that private respondent Pacfor exercises control over the
petitioner.
Next, we shall determine if petitioner was constructively dismissed from employment.
The evidence shows that when petitioner insisted on his 50% equity in Pacfor Phils.,
and would not quit however, private respondent Pacfor began to systematically
deprive petitioner of his duties and benefits to make him feel that his presence in the
company was no longer wanted. First, private respondent Pacfor directed petitioner
to turn over to it all records of Pacfor Phils. This would certainly make the work of
petitioner very difficult, if not impossible. Second, private respondent Pacfor ordered
petitioner to remit the Christmas giveaway fund intended for clients of Pacfor Phils.
Then it ordered petitioner to transfer title and turn over to it the possession of the
service car. It also advised its clients in the Philippines, particularly Intercontinental
Paper Industries, Inc. and DAVCOR, not to deal with petitioner and/or Pacfor Phils.
Lastly, private respondent Pacfor appointed a new resident agent for Pacfor Phils.45
Although there is no reduction of the salary of petitioner, constructive dismissal is still
present because continued employment of petitioner is rendered, at the very least,
 Agency, Trusts, and Partnerships Page |8

unreasonable.46 There is an act of clear discrimination, insensibility or disdain by the

employer that continued employment may become so unbearable on the part of the
employee so as to foreclose any choice on his part except to resign from such
employment.47

The harassing acts of the private respondent are unjustified. They were undertaken
when petitioner sought clarification from the private respondent about his supposed
50% equity on Pacfor Phils. Private respondent Pacfor invokes its rights as an owner.
Allegedly, its issuance of the foregoing directives against petitioner was a valid
exercise of management prerogative. We remind private respondent Pacfor that the
exercise of management prerogative is not absolute. “By its very nature,
encompassing as it could be, management prerogative must be exercised in good
faith and with due regard to the rights of labor—verily, with the principles of fair play
at heart and justice in mind.” The exercise of management prerogative cannot be
utilized as an implement to circumvent our laws and oppress employees.48

As resident agent of private respondent corporation, petitioner occupied a position

involving trust and confidence. In the light of the strained relations between the
parties, the full restoration of an employment relationship based on trust and
confidence is no longer possible. He should be awarded separation pay, in lieu of
reinstatement.

IN VIEW WHEREOF, the petition is GRANTED. The Court of Appeals’ January 30,
2003 Decision in CA-G.R. SP No. 71028 and July 30, 2003 Resolution, affirming the
December 20, 2001 Decision of the National Labor Relations Commission, are
ANNULED and SET ASIDE. The July 30, 2001 Decision of the Labor Arbiter is
REINSTATED with the MODIFICATION that the amount of P250,000.00 representing
an alleged increase in petitioner’s salary shall be deducted from the grant of
separation pay for lack of evidence.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna and Garcia, JJ., concur.


G.R. No. 136448. November 3, 1999.*
LIM TONG LIM, petitioner, vs. PHILIPPINE FISHING GEAR INDUSTRIES,
INC., respondent.
Partnerships; A partnership may be deemed to exist among parties who agree to
borrow money to pursue a business and to divide the profits or losses that may arise
therefrom, even if it is shown that they have not contributed any capital of their own
to a “common fund,” as their contribution to such fund could be an intangible like
credit or industry.—From the factual findings of both lower courts, it is clear that
Chua, Yao and Lim had decided to engage in a fishing business, which they started
by buying boats worth P3.35 million, financed by a loan secured from Jesus Lim who
was petitioner’s brother. In their Compromise Agreement, they subsequently revealed
their intention to pay the loan with the proceeds of the sale of the boats, and to
divide equally among them the excess or loss. These boats, the purchase and the
repair of which were financed with borrowed money, fell under the term “common
fund” under Article 1767. The contribution to such fund need not be cash or fixed
assets; it could be an intangible like credit or industry. That the parties agreed that
any loss or profit from the sale and operation of the boats would be divided equally
among them also shows that they had indeed formed a partnership.
Same; Appeals; Petitions for Review; Pleadings and Practice; Under Rule 45, a
petition for review should involve only questions of law, and a petitioner, in assailing
the factual findings of the two lower courts, effectively goes beyond the bounds of a
petition for review.—We stress that under Rule 45, a petition for review like the
present case should involve only questions of law. Thus, the foregoing factual
findings of the RTC and the CA are binding on this Court, absent any cogent proof
that the present action is embraced by one of the exceptions to the rule. In assailing
the factual findings of the two lower courts, petitioner effectively goes beyond the
bounds of a petition for review under Rule 45.
Same; Same; Same; A proper adjudication of claimants’ rights mandates that courts
must review and thoroughly appraise all relevant facts.—A proper adjudication of
claimants’ rights mandates that courts must review and thoroughly appraise all
relevant facts. Both lower courts have done so and have found, correctly, a
preexisting partnership among the parties. In implying that the lower courts have
decided on the basis of one piece of document alone, petitioner fails to appreciate
that the CA and the RTC delved into the history of the document and explored all the
possible consequential combinations in harmony with law, logic and fairness. Verily,
the two lower courts’ factual findings mentioned above nullified petitioner’s argument
that the existence of a partnership was based only on the Compromise Agreement.
Same; Loans; It is not uncommon to register the properties acquired from a loan in
the name of the person the lender trusts.—Verily, as found by the lower courts,
petitioner entered into a business agreement with Chua and Yao, in which debts were
Agency, Trusts, and Partnerships Page |9
undertaken in order to finance the acquisition and the upgrading of the vessels which
would be used in their fishing business. The sale of the boats, as well as the division
among the three of the balance remaining after the payment of their loans, proves
beyond cavil that F/B Lourdes, though registered in his name, was not his own
property but an asset of the partnership. It is not uncommon to register the
properties acquired from a loan in the name of the person the lender trusts, who in
this case is the petitioner himself. After all, he is the brother of the creditor, Jesus
Lim.
Same; Corporation Law; Estoppel; Corporation by Estoppel Doctrine; Agency; Those
who act or purport to act as the representatives or agents of an ostensible corporate
entity who is proven to be legally inexistent do so without authority and at their own
risk.—Even if the ostensible corporate entity is proven to be legally nonexistent, a
party may be estopped from denying its corporate existence. “The reason behind this
doctrine is obvious—an unincorporated association has no personality and would be
incompetent to act and appropriate for itself the power and attributes of a
corporation as provided by law; it cannot create agents or confer authority on
another to act in its behalf; thus, those who act or purport to act as its
representatives or agents do so without authority and at their own risk. And as it is
an elementary principle of law that a person who acts as an agent without authority
or without a principal is himself regarded as the principal, possessed of all the right
and subject to all the liabilities of a principal, a person acting or purporting to act on
behalf of a corporation which has no valid existence assumes such privileges and
obligations and becomes personally liable for contracts entered into or for other acts
performed as such agent.”
Same; Same; Same; Same; The doctrine of corporation by estoppel may apply to the
alleged corporation and to a third party; An unincorporated association, which
represents itself to be a corporation, will be estopped from denying its corporate
capacity in a suit against it by a third person who relies in good faith on such
representation.—The doctrine of corporation by estoppel may apply to the alleged
corporation and to a third party. In the first instance, an unincorporated association,
which represented itself to be a corporation, will be estopped from denying its
corporate capacity in a suit against it by a third person who relied in good faith on
such representation. It cannot allege lack of personality to be sued to evade its
responsibility for a contract it entered into and by virtue of which it received
advantages and benefits.
Same; Same; Same; Same; A third party who, knowing an association to be
unincorporated, nonetheless treated it as a corporation and received benefits from it,
may be barred from denying its corporate existence in a suit brought against the
alleged corporation.—A third party who, knowing an association to be
unincorporated, nonetheless treated it as a corporation and received benefits from it,
may be barred from denying its corporate existence in a suit brought against the

alleged corporation. In such case, all those who benefited from the transaction made
by the ostensible corporation, despite knowledge of its legal defects, may be held
liable for contracts they impliedly assented to or took advantage of.
Same; Same; Same; Same; Under the law on estoppel, those acting on behalf of a
corporation and those benefited by it, knowing it to be without valid existence, are
held liable as general partners.—It is difficult to disagree with the RTC and the CA
that Lim, Chua and Yao decided to form a corporation. Although it was never legally
formed for unknown reasons, this fact alone does not preclude the liabilities of the
three as contracting parties in representation of it. Clearly, under the law on estoppel,
those acting on behalf of a corporation and those benefited by it, knowing it to be
without valid existence, are held liable as general partners.
Same; Same; Same; Same; A person who has reaped the benefits of a contract
entered into by persons with whom he previously had an existing relationship is
deemed to be part of said association andmis covered by the scope of the doctrine of
corporation by estoppel.—Technically, it is true that petitioner did not directly act on
behalf of the corporation. However, having reaped the benefits of the contract
entered into by persons with whom he previously had an existing relationship, he is
deemed to be part of said association and is covered by the scope of the doctrine of
corporation by estoppel. We reiterate the ruling of the Court in Alonso v. Villamor: “A
litigation is not a game of technicalities in which one, more deeply schooled and
skilled in the subtle art of movement and position, entraps and destroys the other. It
is, rather, a contest in which each contending party fully and fairly lays before the
court the facts in issue and then, brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that justice be done upon
the merits. Lawsuits, unlike duels, are not to be won by a rapier’s thrust. Technicality,
when it deserts its proper office as an aid to justice and becomes its great hindrance
and chief enemy, deserves scant consideration from courts. There should be no
vested rights in technicalities.”
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Roberto A. Abad for petitioner.
     Benjamin S. Benito & Associates for private respondent.
PANGANIBAN, J.:
A partnership may be deemed to exist among parties who agree to borrow money to
pursue a business and to divide the profits or losses that may arise therefrom, even if
it is shown that they have not contributed any capital of their own to a “common
fund.” Their contribution may be in the form of credit or industry, not necessarily
cash or fixed assets. Being partners, they are all liable for debts incurred by or on
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 10
behalf of the partnership. The liability for a contract entered into on behalf of an
unincorporated association or ostensible corporation may lie in a person who may not
have directly transacted on its behalf, but reaped benefits from that contract.
The Case
In the Petition for Review on Certiorari before us, Lim Tong Lim assails the November
26, 1998 Decision of the Court of Appeals in CA-GR CV 41477,1 which disposed as
follows:
“WHEREFORE, [there being] no reversible error in the appealed decision, the same is
hereby affirmed.”2
The decretal portion of the Quezon City Regional Trial Court (RTC) ruling, which was
affirmed by the CA, reads as follows:
“WHEREFORE, the Court rules:
1. That plaintiff is entitled to the writ of preliminary attachment issued by this Court
on September 20, 1990;
2. That defendants are jointly liable to plaintiff for the following amounts, subject to
the modifications as hereinafter made by reason of the special and unique facts and
circumstances and the proceedings that transpired during the trial of this case;
a. P532,045.00 representing [the] unpaid purchase price of the fishing nets covered
by the Agreement plus P68,000.00 representing the unpaid price of the floats not
covered by said Agreement;
b. 12% interest per annum counted from date of plaintiff’s invoices and computed on
their respective amounts as follows:
i. Accrued interest of P73,221.00 on Invoice No. 14407 for P385,377.80 dated
February 9, 1990;
ii. Accrued interest of P27,904.02 on Invoice No. 14413 for P146,868.00 dated
February 13, 1990;
iii. Accrued interest of P12,920.00 on Invoice No. 14426 for P68,000.00 dated
February 19, 1990;
c. P50,000.00 as and for attorney’s fees, plus P8,500.00 representing P500.00 per
appearance in court;
d. P65,000.00 representing P5,000.00 monthly rental for storage charges on the nets
counted from September 20, 1990 (date of attachment) to September 12, 1991 (date
of auction sale);

e. Cost of suit.
“With respect to the joint liability of defendants for the principal obligation or for the
unpaid price of nets and floats in the amount of P532,045.00 and P68,000.00,
respectively, or for the total amount of P600,045.00, this Court noted that these
items were attached to guarantee any judgment that may be rendered in favor of the
plaintiff but, upon agreement of the parties, and, to avoid further deterioration of the
nets during the pendency of this case, it was ordered sold at public auction for not
less than P900,000.00 for which the plaintiff was the sole and winning bidder. The
proceeds of the sale paid for by plaintiff was deposited in court. In effect, the amount
of P900,000.00 replaced the attached property as a guaranty for any judgment that
plaintiff may be able to secure in this case with the ownership and possession of the
nets and floats awarded and delivered by the sheriff to plaintiff as the highest bidder
in the public auction sale. It has also been noted that ownership of the nets [was]
retained by the plaintiff until full payment [was] made as stipulated in the invoices;
hence, in effect, the plaintiff attached its own properties. It [was] for this reason also
that this Court earlier ordered the attachment bond filed by plaintiff to guaranty
damages to defendants to be cancelled and for the P900,000.00 cash bidded and
paid for by plaintiff to serve as its bond in favor of defendants.
“From the foregoing, it would appear therefore that whatever judgment the plaintiff
may be entitled to in this case will have to be satisfied from the amount of
P900,000.00 as this amount replaced the attached nets and floats. Considering,
however, that the total judgment obligation as computed above would amount to
only P840,216.92, it would be inequitable, unfair and unjust to award the excess to
the defendants who are not entitled to damages and who did not put up a single
centavo to raise the amount of P900,000.00 aside from the fact that they are not the
owners of the nets and floats. For this reason, the defendants are hereby relieved
from any and all liabilities arising from the monetary judgment obligation enumerated
above and for plaintiff to retain possession and ownership of the nets and floats and
for the reimbursement of the P900,000.00 deposited by it with the Clerk of Court.
SO ORDERED.”3
The Facts
On behalf of “Ocean Quest Fishing Corporation,” Antonio Chua and Peter Yao entered
into a Contract dated February 7, 1990, for the purchase of fishing nets of various
sizes from the Philippine Fishing Gear Industries, Inc. (herein respondent). They
claimed that they were engaged in a business venture with Petitioner Lim Tong Lim,
who however was not a signatory to the agreement. The total price of the nets
amounted to P532,045. Four hundred pieces of floats worth P68,000 were also sold
to the Corporation.4
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 11
The buyers, however, failed to pay for the fishing nets and the floats; hence, private
respondent filed a collection suit against Chua, Yao and Petitioner Lim Tong Lim with
a prayer for a writ of preliminary attachment. The suit was brought against the three
in their capacities as general partners, on the allegation that “Ocean Quest Fishing
Corporation” was a nonexistent corporation as shown by a Certification from the
Securities and Exchange Commission.5 On September 20, 1990, the lower court
issued a Writ of Preliminary Attachment, which the sheriff enforced by attaching the
fishing nets on board F/B Lourdes which was then docked at the Fisheries Port,
Navotas, Metro Manila.
Instead of answering the Complaint, Chua filed a Manifestation admitting his liability
and requesting a reasonable time within which to pay. He also turned over to
respondent some of the nets which were in his possession. Peter Yao filed an Answer,
after which he was deemed to have waived his right to cross-examine witnesses and
to present evidence on his behalf, because of his failure to appear in subsequent
hearings. Lim Tong Lim, on the other hand, filed an Answer with Counterclaim and
Crossclaim and moved for the lifting of the Writ of Attachment.6 The trial court
maintained the Writ, and upon motion of private respondent, ordered the sale of the
fishing nets at a public auction. Philippine Fishing Gear Industries won the bidding
and deposited with the said court the sales proceeds of P900,000.7
On November 18, 1992, the trial court rendered its Decision, ruling that Philippine
Fishing Gear Industries was entitled to the Writ of Attachment and that Chua, Yao
and Lim, as general partners, were jointly liable to pay respondent.8
The trial court ruled that a partnership among Lim, Chua and Yao existed based (1)
on the testimonies of the witnesses presented and (2) on a Compromise Agreement
executed by the three9 in Civil Case No. 1492-MN which Chua and Yao had brought
against Lim in the RTC of Malabon, Branch 72, for (a) a declaration of nullity of
commercial documents; (b) a reformation of contracts; (c) a declaration of ownership
of fishing boats; (d) an injunction and (e) damages.10 The Compromise Agreement
provided:
“a) That the parties plaintiffs & Lim Tong Lim agree to have the four (4) vessels sold
in the amount of P5,750,000.00 including the fishing net. This P5,750,000.00 shall be
applied as full payment for P3,250,000.00 in favor of JL Holdings Corporation and/or
Lim Tong Lim;
“b) If the four (4) vessel[s] and the fishing net will be sold at a higher price than
P5,750,000.00 whatever will be the excess will be divided into 3:1/3 Lim Tong Lim;
1/3 Antonio Chua; 1/3 Peter Yao;
“c) If the proceeds of the sale the vessels will be less than P5,750,000.00 whatever
the deficiency shall be shouldered and paid to JL Holding Corporation by 1/3 Lim
Tong Lim; 1/3 Antonio Chua; 1/3 Peter Yao.”11

The trial court noted that the Compromise Agreement was silent as to the nature of
their obligations, but that joint liability could be presumed from the equal distribution
of the profit and loss.12
Lim appealed to the Court of Appeals (CA) which, as already stated, affirmed the
RTC.
Ruling of the Court of Appeals
In affirming the trial court, the CA held that petitioner was a partner of Chua and Yao
in a fishing business and may thus be held liable as a such for the fishing nets and
floats purchased by and for the use of the partnership. The appellate court ruled:
“The evidence establishes that all the defendants including herein appellant Lim Tong
Lim undertook a partnership for a specific undertaking, that is for commercial fishing
x x x. Obviously, the ultimate undertaking of the defendants was to divide the profits
among themselves which is what a partnership essentially is x x x. By a contract of
partnership, two or more persons bind themselves to contribute money, property or
industry to a common fund with the intention of dividing the profits among
themselves (Article 1767, New Civil Code).”13
Hence, petitioner brought this recourse before this Court.14
The Issues
In his Petition and Memorandum, Lim asks this Court to reverse the assailed Decision
on the following grounds:
“I THE COURT OF APPEALS ERRED IN HOLDING, BASED ON A COMPROMISE
AGREEMENT THAT CHUA, YAO AND PETITIONER LIM ENTERED INTO IN A
SEPARATE CASE, THAT A PARTNERSHIP AGREEMENT EXISTED AMONG THEM.
“II SINCE IT WAS ONLY CHUA WHO REPRESENTED THAT HE WAS ACTING FOR
OCEAN QUEST FISHING CORPORATION WHEN HE BOUGHT THE NETS FROM
PHILIPPINE FISHING, THE COURT OF APPEALS WAS UNJUSTIFIED IN IMPUTING
LIABILITY TO PETITIONER LIM AS WELL.
“III THE TRIAL COURT IMPROPERLY ORDERED THE SEIZURE AND ATTACHMENT OF
PETITIONER LIM’S GOODS.”
In determining whether petitioner may be held liable for the fishing nets and floats
purchased from respondent, the Court must resolve this key issue: whether by their
acts, Lim, Chua and Yao could be deemed to have entered into a partnership.
This Court’s Ruling
The Petition is devoid of merit.
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 12
First and Second Issues:
Existence of a Partnership
and Petitioner’s Liability
In arguing that he should not be held liable for the equipment purchased from
respondent, petitioner controverts the CA finding that a partnership existed between
him, Peter Yao and Antonio Chua. He asserts that the CA based its finding on the
Compromise Agreement alone. Furthermore, he disclaims any direct participation in
the purchase of the nets, alleging that the negotiations were conducted by Chua and
Yao only, and that he has not even met the representatives of the respondent
company. Petitioner further argues that he was a lessor, not a partner, of Chua and
Yao, for the “Contract of Lease” dated February 1, 1990, showed that he had merely
leased to the two the main asset of the purported partnership—the fishing boat F/B
Lourdes. The lease was for six months, with a monthly rental of P37,500 plus 25
percent of the gross catch of the boat.
We are not persuaded by the arguments of petitioner. The facts as found by the two
lower courts clearly showed that there existed a partnership among Chua, Yao and
him, pursuant to Article 1767 of the Civil Code which provides:
“Article 1767—By the contract of partnership, two or more persons bind themselves
to contribute money, property, or industry to a common fund, with the intention of
dividing the profits among themselves.”
Specifically, both lower courts ruled that a partnership among the three existed based
on the following factual findings:15
(1) That Petitioner Lim Tong Lim requested Peter Yao who [was] engaged in
commercial fishing to join him, while Antonio Chua was already Yao’s partner;
(2) That after convening for a few times, Lim, Chua, and Yao verbally agreed to
acquire two fishing boats, the FB Lourdes and the FB Nelson for the sum of P3.35
million;
(3) That they borrowed P3.25 million from Jesus Lim, brother of Petitioner Lim Tong
Lim, to finance the venture;
(4) That they bought the boats from CMF Fishing Corporation, which executed a
Deed of Sale over these two (2) boats in favor of Petitioner Lim Tong Lim only to
serve as security for the loan extended by Jesus Lim;
(5) That Lim, Chua and Yao agreed that the refurbishing, re-equipping, repairing, dry
docking and other expenses for the boats would be shouldered by Chua and Yao;

(6) That because of the “unavailability of funds,” Jesus Lim again extended a loan to
the partnership in the amount of P1 million secured by a check, because of which,
Yao and Chua entrusted the ownership papers of two other boats, Chua’s FB Lady
Anne Mel and Yao’s FB Tracy to Lim Tong Lim;
(7) That in pursuance of the business agreement, Peter Yao and Antonio Chua
bought nets from Respondent Philippine Fishing Gear, in behalf of “Ocean Quest
Fishing Corporation,” their purported business name;
(8) That subsequently, Civil Case No. 1492-MN was filed in the Malabon RTC, Branch
72 by Antonio Chua and Peter Yao against Lim Tong Lim for (a) declaration of nullity
of commercial documents; (b) reformation of contracts; (c) declaration of ownership
of fishing boats; (4) injunction; and (e) damages;
(9) That the case was amicably settled through a Compromise Agreement executed
between the parties-litigants the terms of which are already enumerated above.
From the factual findings of both lower courts, it is clear that Chua, Yao and Lim had
decided to engage in a fishing business, which they started by buying boats worth
P3.35 million, financed by a loan secured from Jesus Lim who was petitioner’s
brother. In their Compromise Agreement, they subsequently revealed their intention
to pay the loan with the proceeds of the sale of the boats, and to divide equally
among them the excess or loss. These boats, the purchase and the repair of which
were financed with borrowed money, fell under the term “common fund” under
Article 1767. The contribution to such fund need not be cash or fixed assets; it could
be an intangible like credit or industry. That the parties agreed that any loss or profit
from the sale and operation of the boats would be divided equally among them also
shows that they had indeed formed a partnership.
Moreover, it is clear that the partnership extended not only to the purchase of the
boat, but also to that of the nets and the floats. The fishing nets and the floats, both
essential to fishing, were obviously acquired in furtherance of their business. It would
have been inconceivable for Lim to involve himself so much in buying the boat but
not in the acquisition of the aforesaid equipment, without which the business could
not have proceeded.
Given the preceding facts, it is clear that there was, among petitioner, Chua and Yao,
a partnership engaged in the fishing business. They purchased the boats, which
constituted the main assets of the partnership, and they agreed that the proceeds
from the sales and operations thereof would be divided among them.
We stress that under Rule 45, a petition for review like the present case should
involve only questions of law. Thus, the foregoing factual findings of the RTC and the
CA are binding on this Court, absent any cogent proof that the present action is
embraced by one of the exceptions to the rule.16 In assailing the factual findings of
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 13
the two lower courts, petitioner effectively goes beyond the bounds of a petition for
review under Rule 45.
Compromise Agreement
Not the Sole Basis of Partnership
Petitioner argues that the appellate court’s sole basis for assuming the existence of a
partnership was the Compromise Agreement. He also claims that the settlement was
entered into only to end the dispute among them, but not to adjudicate their
preexisting rights and obligations. His arguments are baseless. The Agreement was
but an embodiment of the relationship extant among the parties prior to its
execution.
A proper adjudication of claimants’ rights mandates that courts must review and
thoroughly appraise all relevant facts. Both lower courts have done so and have
found, correctly, a preexisting partnership among the parties. In implying that the
lower courts have decided on the basis of one piece of document alone, petitioner
fails to appreciate that the CA and the RTC delved into the history of the document
and explored all the possible consequential combinations in harmony with law, logic
and fairness. Verily, the two lower courts’ factual findings mentioned above nullified
petitioner’s argument that the existence of a partnership was based only on the
Compromise Agreement.
Petitioner Was a Partner,
Not a Lessor
We are not convinced by petitioner’s argument that he was merely the lessor of the
boats to Chua and Yao, not a partner in the fishing venture. His argument allegedly
finds support in the Contract of Lease and the registration papers showing that he
was the owner of the boats, including F/B Lourdes where the nets were found.
His allegation defies logic. In effect, he would like this Court to believe that he
consented to the sale of his own boats to pay a debt of Chua and Yao, with the
excess of the proceeds to be divided among the three of them. No lessor would do
what petitioner did. Indeed, his consent to the sale proved that there was a
preexisting partnership among all three. Verily, as found by the lower courts,
petitioner entered into a business agreement with Chua and Yao, in which debts were
undertaken in order to finance the acquisition and the upgrading of the vessels which
would be used in their fishing business. The sale of the boats, as well as the division
among the three of the balance remaining after the payment of their loans, proves
beyond cavil that F/B Lourdes, though registered in his name, was not his own
property but an asset of the partnership. It is not uncommon to register the
properties acquired from a loan in the name of the person the lender trusts, who in

this case is the petitioner himself. After all, he is the brother of the creditor, Jesus
Lim.
We stress that it is unreasonable—indeed, it is absurd—for petitioner to sell his
property to pay a debt he did not incur, if the relationship among the three of them
was merely that of lessor-lessee, instead of partners.
Corporation by Estoppel
Petitioner argues that under the doctrine of corporation by estoppel, liability can be
imputed only to Chua and Yao, and not to him. Again, we disagree.
Section 21 of the Corporation Code of the Philippines provides:
“Sec. 21. Corporation by estoppel.—All persons who assume to act as a corporation
knowing it to be without authority to do so shall be liable as general partners for all
debts, liabilities and damages incurred or arising as a result thereof: Provided
however, That when any such ostensible corporation is sued on any transaction
entered by it as a corporation or on any tort committed by it as such, it shall not be
allowed to use as a defense its lack of corporate personality.
“One who assumes an obligation to an ostensible corporation as such, cannot resist
performance thereof on the ground that there was in fact no corporation.”
Thus, even if the ostensible corporate entity is proven to be legally nonexistent, a
party may be estopped from denying its corporate existence. “The reason behind this
doctrine is obvious—an unincorporated association has no personality and would be
incompetent to act and appropriate for itself the power and attributes of a
corporation as provided by law; it cannot create agents or confer authority on
another to act in its behalf; thus, those who act or purport to act as its
representatives or agents do so without authority and at their own risk. And as it is
an elementary principle of law that a person who acts as an agent without authority
or without a principal is himself regarded as the principal, possessed of all the right
and subject to all the liabilities of a principal, a person acting or purporting to act on
behalf of a corporation which has no valid existence assumes such privileges and
obligations and becomes personally liable for contracts entered into or for other acts
performed as such agent.”17
The doctrine of corporation by estoppel may apply to the alleged corporation and to a
third party. In the first instance, an unincorporated association, which represented
itself to be a corporation, will be estopped from denying its corporate capacity in a
suit against it by a third person who relied in good faith on such representation. It
cannot allege lack of personality to be sued to evade its responsibility for a contract it
entered into and by virtue of which it received advantages and benefits.
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 14
On the other hand, a third party who, knowing an association to be unincorporated,
nonetheless treated it as a corporation and received benefits from it, may be barred
from denying its corporate existence in a suit brought against the alleged corporation.
In such case, all those who benefited from the transaction made by the ostensible
corporation, despite knowledge of its legal defects, may be held liable for contracts
they impliedly assented to or took advantage of.
There is no dispute that the respondent, Philippine Fishing Gear Industries, is entitled
to be paid for the nets it sold. The only question here is whether petitioner should be
held jointly18 liable with Chua and Yao. Petitioner contests such liability, insisting that
only those who dealt in the name of the ostensible corporation should be held liable.
Since his name does not appear on any of the contracts and since he never directly
transacted with the respondent corporation, ergo, he cannot be held liable.
Unquestionably, petitioner benefited from the use of the nets found inside F/B
Lourdes, the boat which has earlier been proven to be an asset of the partnership. He
in fact questions the attachment of the nets, because the Writ has effectively stopped
his use of the fishing vessel.
It is difficult to disagree with the RTC and the CA that Lim, Chua and Yao decided to
form a corporation. Although it was never legally formed for unknown reasons, this
fact alone does not preclude the liabilities of the three as contracting parties in
representation of it. Clearly, under the law on estoppel, those acting on behalf of a
corporation and those benefited by it, knowing it to be without valid existence, are
held liable as general partners.
Technically, it is true that petitioner did not directly act on behalf of the corporation.
However, having reaped the benefits of the contract entered into by persons with
whom he previously had an existing relationship, he is deemed to be part of said
association and is covered by the scope of the doctrine of corporation by estoppel.
We reiterate the ruling of the Court in Alonso v. Villamor:19
“A litigation is not a game of technicalities in which one, more deeply schooled and
skilled in the subtle art of movement and position, entraps and destroys the other. It
is, rather, a contest in which each contending party fully and fairly lays before the
court the facts in issue and then, brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that justice be done upon
the merits. Lawsuits, unlike duels, are not to be won by a rapier’s thrust. Technicality,
when it deserts its proper office as an aid to justice and becomes its great hindrance
and chief enemy, deserves scant consideration from courts. There should be no
vested rights in technicalities.”
Third Issue:
Validity of Attachment
 A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 15

Finally, petitioner claims that the Writ of Attachment was improperly issued against
the nets. We agree with the Court of Appeals that this issue is now moot and
academic. As previously discussed, F/B Lourdes was an asset of the partnership and
that it was placed in the name of petitioner, only to assure payment of the debt he
and his partners owed. The nets and the floats were specifically manufactured and
tailor-made according to their own design, and were bought and used in the fishing
venture they agreed upon. Hence, the issuance of the Writ to assure the payment of
the price stipulated in the invoices is proper. Besides, by specific agreement,
ownership of the nets remained with Respondent Philippine Fishing Gear, until full
payment thereof.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.
partnership is liable therefor to the same extent as the partner so acting or omitting
to act; (2) where one partner acting within the scope of his apparent authority
receives money or property of a third person and misapplies it; and (3) where the
partnership in the course of its business receives money or property of a third person
and the money or property so received is misapplied by any partner while it is in the
custody of the partnership3—consistently with the rules on the nature of civil liability
in delicts and quasi-delicts.
Petition denied; Assailed decision affirmed.
Notes.—A party is estopped to challenge the personality of a corporation after having
acknowledged the same by entering into a contract with it. (Georg Grotjahn GMBH &
Co. vs. Isnani, 235 SCRA 216 [1994])

SO ORDERED. The doctrine of corporation by estoppel cannot override jurisdictional requirements—

jurisdiction is fixed by law and cannot be acquired through or waived, enlarged or
     Melo (Chairman), Purisima and Gonzaga-Reyes, JJ., concur. diminished by, any act or omission of the parties, and neither can it be conferred by
the acquiescence of the court. (Lozano vs. De los Santos, 274 SCRA 452 [1997]) Lim
     Vitug, J., Pls. see Concurring Opinion. Tong Lim vs. Philippine Fishing Gear Industries, Inc., 317 SCRA 728, G.R. No. 136448
CONCURRING OPINION November 3, 1999

VITUG, J.:

I share the views expressed in the ponencia of an esteemed colleague, Mr. Justice
Artemio V. Panganiban, particularly the finding that Antonio Chua, Peter Yao and
petitioner Lim Tong Lim have incurred the liabilities of general partners. I merely
would wish to elucidate a bit, albeit briefly, the liability of partners in a general
partnership.

When a person by his act or deed represents himself as a partner in an existing

partnership or with one or more persons not actual partners, he is deemed an agent
of such persons consenting to such representation and in the same manner, as if he
were a partner with respect to persons who rely upon the representation.1 The
association formed by Chua, Yao and Lim, should be, as it has been deemed, a de
facto partnership with all the consequent obligations for the purpose of enforcing the
rights of third persons. The liability of general partners (in a general partnership as so
opposed to a limited partnership) is laid down in Article 18162 which posits that all
partners shall be liable pro rata beyond the partnership assets for all the contracts
which may have been entered into in its name, under its signature, and by a person
authorized to act for the partnership. This rule is to be construed along with other
provisions of the Civil Code which postulate that the partners can be held solidarily
liable with the partnership specifically in these instances—(1) where, by any wrongful
act or omission of any partner acting in the ordinary course of the business of the
partnership or with the authority of his co-partners, loss or injury is caused to any
person, not being a partner in the partnership, or any penalty is incurred, the

No. L-49982. April 27, 1988.*
ELIGIO ESTANISLAO, JR., petitioner, vs. THE HONORABLE COURT OF
APPEALS, REMEDIOS ESTANISLAO, EMILIO and LEOCADIO SANTIAGO,
respondents.
Civil Law; Partnership; No merit in the contention that because of the stipulation
cancelling and superseding the previous joint affidavit, whatever partnership
agreement there was in said previous agreement had thereby been abrogated.—
Petitioner contends that because of the said stipulation cancelling and superseding
that previous Joint Affidavit, whatever partnership agreement there was in said
previous agreement had thereby been abrogated. We find not merit in this argument.
Said cancelling provision was necessary for the Joint Aflfidavit speaks of P15,QOO.OO
advance rentals starting May 25, 1966 while the latter agreement also refers to
advance rentals of the same amount starting May 24,1966, There is, therefore, a
duplication of reference to the Pl 5,000.00 hence the need to provide in the
subsequent document that it “cancels and supersedes” the previous one. True it is
that in the latter document, it is silent as to the statement in the Joint Affidavit that
the P15,000.00 represents the “capital investment” of the parties in the gasoline
station business and it speaks of petitioner as the sole dealer, but this is as it should
be for in the latter document SHELL was a signatory and it would be against its policy
if in the agreement it should be stated that the business is a partnership with private
respondents and not a sole proprietorship of petitioner.
Same; Same; Same; Evidence showing that there was in fact such partnership
agreement between theparties.—Moreover other evidence in the record shows that
there was in fact such partnership agreement between the parties. This is attested by
the testimonies of private respondent Remedios Estanislao and Atty. Angeles.
Petitioner submitted to private respondents periodic accounting of the business.
Petitioner gave a written authority to private respondent Remedios Estanislao, his
sister, to examine and audit the books of their “common business” (aming negosyo).
Reapondent Remedios assisted in the running of the business. There is no doubt that
the parties hereto formed a partnership when they bound themselves to contribute
money in a common fund with the intention of dividing the profits among themselves.
The sole dealership by the petitioner and the issuance of all government permits and
licenses in the name of petitioner was in compliance with the afore-stated policy of
SHELL and the understanding of the parties of having only one dealer of the SHELL
products.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Agustin O. Benitez for petitioner.
     Benjamin C. Yatco for private respondents.
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 16
GANCAYCO, J.;
By this petition for certiorari the Court is asked to determine if a partnership exists
between members of the same family arising from their joint ownership of certain
properties.
Petitioner and private respondents are brothers and sisters who are co-owners of
certain lots at the corner of Annapolis and Aurora Blvd., Quezon City which were then
being leased to the Shell Company of the Philippines Limited (SHELL). They agreed to
open and operate a gas station thereat to be known as Estanislao Shell Service
Station with an initial investment of Pl5.000.00 to be taken from the advance rentals
due to them from SHELL for the occupancy of the said lots owned in common by
them. A joint affidavit was executed by them on April 11, 1966 which was prepared
by Atty. Democrito Angeles.1 They agreed to help their brother, petitioner herein, by
allowing him to operate and manage the gasoline service station of the family. They
negotiated with SHELL. For practical purposes and in order not to run counter to the
company’s policy of appointing only one dealer. it was agreed that petitioner would
apply for the dealership. Respondent Remedios helped in comanaging the business
with petitioner from May 3,1966 up to Februaryl6,1967.
On May 26, 1966, the parties herein entered into an Additional Cash Pledge
Agreement with SHELL wherein it was reiterated that the Pl5,000.00 advance rental
shall be deposited with SHELL to cover advances of fuel to petitioner as dealer with a
proviso that said agreement “cancels and supersedes the Joint Affidavit dated 11 April
1966 executed by the co-owners."2
For sometime, the petitioner submitted financial statements regarding the operation
of the business to private respondents, but therafter petitioner failed to render
subsequent accounting. Hence through Atty. Angeles, a demand was made on
petitioner to render an accounting of the profits.
The financial report of December 31, 1968 shows that the business was able to make
a profit of P87,293.79 and that by the year ending 1969, a profit ofPl 50,000.00 was
realized.3
Thus, on August 25, 1970 private respondents filed a complaint in the Court of First
Instance of Rizal against petitioner praying among others that the latter be ordered:
“1. to execute a public document embodying all the provisions of the partnership
agreement entered into between plaintiffs and defendant as provided in Article 1771
of the New Civil Code;
“2. to render a formal accounting of the business operation covering the period from
May 6,1966 up to December 21,1968 and from January 1,1969 up to the time the
order is issued and that the same be subject to proper audit;

“3. to pay the plaintiffs their lawful shares and participation in the net profits of the
business in an amount of no less than Pl 50,000.00 with interest at the rate of 1%
per month from date of demand until full payment thereof for the entire duration of
the business; and
“4. to pay the plaintiffs the amount of P10,000=00 as attorney’s fees and costs of the
suit.” (pp. 13–14 Record on Appeal.)"
After trial on the merits, on October 15, 1975, Hon. Lino Anover, who was then the
temporary presiding judge of Branch IV of the trial court, rendered judgment
dismissing the complaint and counterclaim and ordering private respondents to pay
petitioner P3,000.00 attorney’s fee and costs. Private respondent filed a motion for
reconsideration of the decision. On December 10,1975, Hon. Ricardo Tensuan who
was the newly appointed presiding judge of the same branch, set aside the aforesaid
decision and rendered another decision in favor of said respondents.
The dispositive part thereof reads as follows:
WHEREFORE, the Decision of this Court dated October 14,1975 is hereby
reconsidered and a new judgment is hereby rendered in favor of the plaintiffs and as
against the defendant:
(1) Ordering the defendant to execute a public instrument embodying all the
provisions of the partnership agreement entered into between plaintiffs and
defendant as provided for in Article 1771, Civil Code of the Philippines;
(2) Ordering the defendant to render a formal accounting of the business operation
from April 1969 up to the time this order is issued, the same to be subject to
examination and audit by the plaintiff;
(3) Ordering the defendant to pay plaintiffs their lawful shares and participation in the
net profits of the business in the amount of P150,000.00, with interest thereon at the
rate of One (1%) Per Cent per month from date of demand until full payment
thereof;
(4) Ordering the defendant to pay the plaintiffs the sum of P5,000.00 by way of
attorney’s fees of plaintiffs’ counsel; as well as the costs of suit.” (pp. 161462. Record
on Appeal)."
Petitioner then interposed an appeal to the Court of Appeals enumerating seven (7)
errors allegedly committed by the trial court. In due course, a decision was rendered
by the Court of Appeals on November 28,1978 affirming in toto the decision of the
lower court with costs against petitioner.**
A motion for reconsideration of said decision filed by petitioner was denied on
January 30,1979. Not satisfied therewith, the petitioner now comes to this court by
way of this petition for certiorari alleging that the respondent court erred:
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 17
1. In interpreting the legal import of the Joint Affidavit (Exh. “A") vis-a-vis the
Additional Cash Pledge Agreement (Exhs. “B-2," “6," and “L"); and
2, In declaring that a partnership was established by and among the petitioner and
the private respondents as regards the ownership and/or operation of the gasoline
service station business.”
Petitioner relies heavily on the provisions of the Joint Affidavit of April 11,1966
(Exhibit A) and the Additional Cash Pledge Agreement of May 20,1966 (Exhibit 6)
which are herein reproduced
(a) The joint Affidavit of April 11,1966, Exhibit A reads:
"(1) That we are the Lessors of two parcels of land fully described in Tranafer
Certificates of Title Nos. 46071 and 71244 of the Register of Deeds of Quezon City, in
favor of the LESSEE—SHELL COMPANY OF THE PfflLIPPINES LIMITED, a corporation
duly licensed to do business in the Philippines;
"(2) That we have requested the said SHELL COMPANY OF THE PfflLIPPINES
LIMITED, advanced rentals in the total amount of FIFTEEN THOUSAND PESOS
(P15,000.00) Philippine Currency, so that we can use the said amount to augment
our capital investment in the operation of that gasoline station constructed by the
said company on our two lots aforesaid by virtue of an outstanding Lease Agreement
we have entered into with the said company;
"(3) That the said SHELL COMPANY OF THE PHILIPPINES LIMITED out of its
benevolence and desire to help us in augmenting our capital investment in the
operation of the said gasoline station, has agreed to give us the said amount of
Pl5,000.00, which amount will partake the nature of ADVANCED RENTALS;
"(4) That we have freely and voluntarily agreed that upon receipt of the said amount
of FIFTEEN THOUSAND PESOS (P15,000.00) from the SHELL COMPANY OF THE
PHILIPPINES LIMITED, the said sum as ADVANCED RENTALS to us be applied as
monthly rentals for the said two lots under our Lease Agreement starting on the 25th
of May, 1966 until such time that the said amount of Pl 5,000.00 be applicable, which
time to our estimate will cover at four and one-half months from May 25, 1966 or
until the 10th of October, 1966 more or less;
"(5) That we have likewise agreed among ourselves that the SHELL COMPANY OF
THE PHILIPPINES LIMITED execute an instrument for us to sign embodying our
conformity that the said amount that it will generously grant us as requested be
applied as ADVANCED RENTALS; and
"(6) FURTHER AFFIANTS SAYETH NOT."
(b) The Additional Cash Pledge Agreement ofMay 20,1966, Exhibit 6, is as follows:

“WHEREAS, under the lease Agreement dated 13th November, 1963 (identified as
doc. Nos. 491 x. 1407, Page Nos. 99 x. 66, Book Nos. V, &. III, Series of 1963 in the
Notarial Registers of Notaries Public Rosauro Marquez, and R.D. Liwanag,
respectively) executed in favour of SHELL by the herein CO-OWNERS and another
Lease Agreement dated 19th March 1964 xx xx xx also executed in favour of SHELL
by COOWNERS Remedios and MARIA ESTANISLAO for the lease of adjoining portions
of two parcels of land at Aurora BIvd./Annapolis, Quezon City, the CO-OWNERS
RECEIVE a total monthly rental of PESOS THREE THOUSAND THREE HUNDRED
EIGHTY TWO AND 29/100 (P3,382.29), Philippine Currency;
“WHEREAS, CO-OWNER Eligio Estanislao, Jr. is the Dealer of the Shell Station
constructed on the leased land, and as Dealer under the Cash Pledge Agreement
dated 11th May 1966, he deposited to SHELL in cash the amount of PESOS TEN
THOUSAND (P10,000), Philippine Currency, to secure his purchases on credit of Shell
petroleum products; x x x
“WHEREAS, said DEALER, in his desire to be granted an increased credit limit up to
P25,000, has secured the conformity of his CO-OWNERS to waive and assign to
SHELL the total monthly rentals due to all of them to accumulate the equivalent
amount of P1 5,000, commenting 24th May 1966, this P15,000 shall be treated as
additional cash deposit to SHELL under the same terms and conditions of the
aforementioned Cash Pledge Agreement dated 11th May 1966.
NOW, THEREFORE, for and in consideration of the foregoing premises, and the
mutual covenants among the CO-OWNERS herein and SHELL, said parties have
agreed and hereby agree as follows:
“1. The CO-OWNERS do hereby waive in favour of DEALER the monthly rentals due
to all CO-OWNERS, collectively, under the above described two Lease Agreements,
one dated 13th November 1963 andt he other dated 19th March 1964 to enable
DEALER to increase his existing cash deposit to SHELL, from P10,000 to P25,000, for
such purpose, the SHELL CO-OWNERS and DEALER hereby irrevocably assign to
SHELL the monthly rental of P3,382.29 payable to them respectively as they fall due,
monthly, commencing 24th May 1966, until such time that the monthly rentals
accumulated, shall be equal to P15,000.
“2. The above stated monthly rentals accumulated shall be treated as additional cash
deposit by DEALER to SHELL, thereby increasing his credit limit from P10,000 to
P25,000. This agreement, therefore, cancels and supersedes the Joint Affidavit dated
11 April1 966 executed by the CO-OWNERS.
“3. Effective upon the signing of this agreement, SHELL agrees to allow DEALER to
purchase from SHELL petroleum products, on credit, up to the amount of P25,000.
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 18
“4. This increase in the credit limit shall also be subject to the same terms and
conditions of the above-mentioned Cash Pledge Agreement dated 11th May 1966."
(Exhs. “B-2," “L," and “6"; italics supplied)
In the aforesaid Joint Affidavit of April 11,1966 (Exhibit A), it is clearly stipulated by
the parties that the P15,000.00 advance rental due to them from SHELL shall
augment their “capital investment” in the operation of the gasoline station, which
advance rentals shall be credited as rentals from May 25, 1966 up to four and one-
half months or until 10 October 1966, more or less covering said Pl5,000.00.
In the subsequent document entitled “Additional Cash Pledge Agreement” above
reproduced (Exhibit 6), the private respondents and petitioners assigned to SHELL
the monthly rentals due them commencing the 24th of May 1966 until such time that
the monthly rentals accumulated equal Pl5,000.00 which private respondents agree
to be a cash deposit of petitioner in favor of SHELL to increase his credit limit as
dealer. As above-stated it provided therein that “This agreement, therefore, cancels
and supersedes the Joint Affidavit dated 11 April 1966 executed by the CO-OWNERS."
Petitioner contends that because of the said stipulation cancelling and superseding
that previous Joint Affidavit, whatever partnership agreement there was in said
previous agreement had thereby been abrogated. We find no merit in this argument.
Said cancelling provision was necessary for the Joint Affidavit speaks of Pl5,000.00
advance rentals starting May 25, 1966 while the latter agreement also refers to
advance rentals of the same amount starting May 24, 1966. There is, therefore, a
duplication of reference to the P15,000.00 hence the need to provide in the
subsequent document that it “cancels and supersedes” the previous one. True it is
that in the latter document, it is silent as to the statement in the Joint Affidavit that
the Pl5,000.00 represents the “capital investment” of the parties in the gasoline
station business and it speaks of petitioner as the sole dealer, but this is as it should
be for in the latter document SHELL was a signatory and it would be against its policy
if in the agreement it should be stated that the business is a partnership with private
respondents and not a sole proprietorship of petitioner.
Moreover other evidence in the record shows that there was in fact such partnership
agreement between the parties. This is attested by the testimonies of private
respondent Remedios Estanislao and Atty. Angeles. Petitioner submitted to private
respondents periodic accounting of the business.4 Petitioner gave a written authority
to private respondent Remedios Estanislao, his sister, to examine and audit the books
of their “common business” (aming negosyo).5 Respondent Remedios assisted in the
running of the business. There is no doubt that the parties hereto formed a
partnership when they bound themselves to contribute money to a common fund
with the intention of dividing the profits among themselves.6 The sole dealership by
the petitioner and the issuance of all government permits and licenses in the name of
petitioner was in compliance with the afore-stated policy of SHELL and the
understanding of the parties of having only one dealer of the SHELL products.
 A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 19

Further, the findings of facts of the respondent court are conclusive in this
proceeding, and its conclusion based on the said facts are in accordance with the
applicable law.

WHEREFORE, the judgment appealed from is AFFIRMED in toto with costs against
petitioner. This decision is immediately executory and no motion for extension of time
to file a motion for reconsideration shall be entertained.

SO ORDERED.

     Narvasa, Cruz and Grino-Aquino, JJ., concur.

Judgment affirmed. Decision immediately executory.


G.R. No. 127347. November 25, 1999.*
ALFREDO N. AGUILA, JR., petitioner, vs. HONORABLE COURT OF APPEALS
and FELICIDAD S. VDA. DE ABROGAR, respondents.
Actions; Parties; Pleadings and Practice; A complaint filed against a party who is not a
real party in interest should be dismissed for failure to state a cause of action.—Rule
3, §2 of the Rules of Court of 1964, under which the complaint in this case was filed,
provided that “every action must be prosecuted and defended in the name of the real
party in interest.” A real party in interest is one who would be benefited or injured by
the judgment, or who is entitled to the avails of the suit. This ruling is now embodied
in Rule 3, §2 of the 1997 Revised Rules of Civil Procedure. Any decision rendered
against a person who is not a real party in interest in the case cannot be executed.
Hence, a complaint filed against such a person should be dismissed for failure to state
a cause of action.
Same; Same; Same; Partnerships; A partnership “has a juridical personality separate
and distinct from that of each of the partners”—it is the partnership, not its officers or
agents, which should be impleaded in any litigation involving property registered in its
name.—Under Art. 1768 of the Civil Code, a partnership “has a juridical personality
separate and distinct from that of each of the partners.” The partners cannot be held
liable for the obligations of the partnership unless it is shown that the legal fiction of
a different juridical personality is being used for fraudulent, unfair, or illegal purposes.
In this case, private respondent has not shown that A.C. Aguila & Sons, Co., as a
separate juridical entity, is being used for fraudulent, unfair, or illegal purposes.
Moreover, the title to the subject property is in the name of A.C. Aguila & Sons, Co.
and the Memorandum of Agreement was executed between private respondent, with
the consent of her late husband, and A.C. Aguila & Sons, Co., represented by
petitioner. Hence, it is the partnership, not its officers or agents, which should be
impleaded in any litigation involving property registered in its name. A violation of this
rule will result in the dismissal of the complaint. We cannot understand why both the
Regional Trial Court and the Court of Appeals sidestepped this issue when it was
squarely raised before them by petitioner.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Lamberto C. Nanquil for petitioner.
     Domingo M. Ballon for private respondent.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals,
dated November 29, 1990, which reversed the decision of the Regional Trial Court,
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 20
Branch 273, Marikina, Metro Manila, dated April 11, 1995. The trial court dismissed
the petition for declaration of nullity of a deed of sale filed by private respondent
Felicidad S. Vda. de Abrogar against petitioner Alfredo N. Aguila, Jr.
The facts are as follows:
Petitioner is the manager of A.C. Aguila & Sons, Co., a partnership engaged in
lending activities. Private respondent and her late husband, Ruben M. Abrogar, were
the registered owners of a house and lot, covered by Transfer Certificate of Title No.
195101, in Marikina, Metro Manila. On April 18, 1991, private respondent, with the
consent of her late husband, and A.C. Aguila & Sons, Co., represented by petitioner,
entered into a Memorandum of Agreement, which provided:
(1) That the SECOND PARTY [A.C. Aguila & Sons, Co.] shall buy the above-described
property from the FIRST PARTY [Felicidad S. Vda. de Abrogar], and pursuant to this
agreement, a Deed of Absolute Sale shall be executed by the FIRST PARTY conveying
the property to the SECOND PARTY for and in consideration of the sum of Two
Hundred Thousand Pesos (P200,000.00), Philippine Currency;
(2) The FIRST PARTY is hereby given by the SECOND PARTY the option to
repurchase the said property within a period of ninety (90) days from the execution
of this memorandum of agreement effective April 18, 1991, for the amount of TWO
HUNDRED THIRTY THOUSAND PESOS (P230,000.00);
(3) In the event that the FIRST PARTY fail to exercise her option to repurchase the
said property within a period of ninety (90) days, the FIRST PARTY is obliged to
deliver peacefully the possession of the property to the SECOND PARTY within fifteen
(15) days after the expiration of the said 90 day grace period;
(4) During the said grace period, the FIRST PARTY obliges herself not to file any lis
pendens or whatever claims on the property nor shall be cause the annotation of say
claim at the back of the title to the said property;
(5) With the execution of the deed of absolute sale, the FIRST PARTY warrants her
ownership of the property and shall defend the rights of the SECOND PARTY against
any party whom may have any interests over the property;
(6) All expenses for documentation and other incidental expenses shall be for the
account of the FIRST PARTY;
(7) Should the FIRST PARTY fail to deliver peaceful possession of the property to the
SECOND PARTY after the expiration of the 15-day grace period given in paragraph 3
above, the FIRST PARTY shall pay an amount equivalent to Five Percent of the
principal amount of TWO HUNDRED PESOS (P200.00) or P10,000.00 per month of
delay as and for rentals and liquidated damages;

(8) Should the FIRST PARTY fail to exercise her option to repurchase the property
within ninety (90) days period above-mentioned, this memorandum of agreement
shall be deemed cancelled and the Deed of Absolute Sale, executed by the parties
shall be the final contract considered as entered between the parties and the
SECOND PARTY shall proceed to transfer ownership of the property above described
to its name free from lines and encumbrances.2
On the same day, April 18, 1991, the parties likewise executed a deed of absolute
sale,3 dated June 11, 1991, wherein private respondent, with the consent of her late
husband, sold the subject property to A.C. Aguila & Sons, Co., represented by
petitioner, for P200,000.00. In a special power of attorney dated the same day, April
18, 1991, private respondent authorized petitioner to cause the cancellation of TCT
No. 195101 and the issuance of a new certificate of title in the name of A.C. Aguila
and Sons, Co., in the event she failed to redeem the subject property as provided in
the Memorandum of Agreement.4
Private respondent failed to redeem the property within the 90-day period as
provided in the Memorandum of Agreement. Hence, pursuant to the special power of
attorney mentioned above, petitioner caused the cancellation of TCT No. 195101 and
the issuance of a new certificate of title in the name of A.C. Aguila and Sons, Co.5
Private respondent then received a letter dated August 10, 1991 from Atty. Lamberto
C. Nanquil, counsel for A.C. Aguila & Sons, Co., demanding that she vacate the
premises within 15 days after receipt of the letter and surrender its possession
peacefully to A.C. Aguila & Sons, Co. Otherwise, the latter would bring the
appropriate action in court.6
Upon the refusal of private respondent to vacate the subject premises, A.C. Aguila &
Sons, Co. filed an ejectment case against her in the Metropolitan Trial Court, Branch
76, Marikina, Metro Manila. In a decision, dated April 3, 1992, the Metropolitan Trial
Court ruled in favor of A.C. Aguila & Sons, Co. on the ground that private respondent
did not redeem the subject property before the expiration of the 90-day period
provided in the Memorandum of Agreement. Private respondent appealed first to the
Regional Trial Court, Branch 163, Pasig, Metro Manila, then to the Court of Appeals,
and later to this Court, but she lost in all the cases.
Private respondent then filed a petition for declaration of nullity of a deed of sale with
the Regional Trial Court, Branch 273, Marikina, Metro Manila on December 4, 1993.
She alleged that the signature of her husband on the deed of sale was a forgery
because he was already dead when the deed was supposed to have been executed
on June 11, 1991.
It appears, however, that private respondent had filed a criminal complaint for
falsification against petitioner with the Office of the Prosecutor of Quezon City which
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 21
was dismissed in a resolution, dated February 14, 1994. On April 11, 1995, Branch
273 of RTC-Marikina rendered its decision:
Plaintiff’s claim therefore that the Deed of Absolute Sale is a forgery because they
could not personally appear before Notary Public Lamberto C. Nanquil on June 11,
1991 because her husband, Ruben Abrogar, died on May 8, 1991 or one month and 2
days before the execution of the Deed of Absolute Sale, while the plaintiff was still in
the Quezon City Medical Center recuperating from wounds which she suffered at the
same vehicular accident on May 8, 1991, cannot be sustained. The Court is convinced
that the three required documents, to wit: the Memorandum of Agreement, the
Special Power of Attorney, and the Deed of Absolute Sale were all signed by the
parties on the same date on April 18, 1991. It is a common and accepted business
practice of those engaged in money lending to prepare an undated absolute deed of
sale in loans of money secured by real estate for various reasons, foremost of which
is the evasion of taxes and surcharges. The plaintiff never questioned receiving the
sum of P200,000.00 representing her loan from the defendant. Common sense
dictates that an established lending and realty firm like the Aguila & Sons, Co. would
not part with P200,000.00 to the Abrogar spouses, who are virtual strangers to it,
without the simultaneous accomplishment and signing of all the required documents,
more particularly the Deed of Absolute Sale, to protect its interest.
WHEREFORE, foregoing premises considered, the case in caption is hereby ORDERED
DISMISSED, with costs against the plaintiff.
On appeal, the Court of Appeals reversed. It held:
The facts and evidence show that the transaction between plaintiff-appellant and
defendant-appellee is indubitably an equitable mortgage. Article 1602 of the New Civil
Code finds strong application in the case at bar in the light of the following
circumstances.
First: The purchase price for the alleged sale with right to repurchase is unusually
inadequate. The property is a two hundred forty (240) sq. m. lot. On said lot, the
residential house of plaintiff-appellant stands. The property is inside a
subdivision/village. The property is situated in Marikina which is already part of Metro
Manila. The alleged sale took place in 1991 when the value of the land had
considerably increased.
For this property, defendant-appellee pays only a measly P200,000.00 or P833.33 per
square meter for both the land and for the house.
Second: The disputed Memorandum of Agreement specifically provides that plaintiff-
appellant is obliged to deliver peacefully the possession of the property to the
SECOND PARTY within fifteen (15) days after the expiration of the said ninety (90)
day grace period. Otherwise stated, plaintiff-appellant is to retain physical possession
of the thing allegedly sold.

In fact, plaintiff-appellant retained possession of the property “sold” as if they were
still the absolute owners. There was no provision for maintenance or expenses, much
less for payment of rent.
Third: The apparent vendor, plaintiff-appellant herein, continued to pay taxes on the
property “sold.” It is well-known that payment of taxes accompanied by actual
possession of the land covered by the tax declaration, constitute evidence of great
weight that a person under whose name the real taxes were declared has a claim of
right over the land.
It is well-settled that the presence of even one of the circumstances in Article 1602 of
the New Civil Code is sufficient to declare a contract of sale with right to repurchase
an equitable mortgage.
Considering that plaintiff-appellant, as vendor, was paid a price which is unusually
inadequate, has retained possession of the subject property and has continued
paying the realty taxes over the subject property, (circumstances mentioned in par.
[1], [2] and [5] of Article 1602 of the New Civil Code), it must be conclusively
presumed that the transaction the parties actually entered into is an equitable
mortgage, not a sale with right to repurchase. The factors cited are in support to the
finding that the Deed of Sale/Memorandum of Agreement with right to repurchase is
in actuality an equitable mortgage.
Moreover, it is undisputed that the deed of sale with right of repurchase was
executed by reason of the loan extended by defendant-appellee to plaintiff-appellant.
The amount of loan being the same with the amount of the purchase price.
Since the real intention of the party is to secure the payment of debt, now deemed to
be repurchase price: the transaction shall then be considered to be an equitable
mortgage.
Being a mortgage, the transaction entered into by the parties is in the nature of a
pactum commissorium which is clearly prohibited by Article 2088 of the New Civil
Code. Article 2088 of the New Civil Code reads:
ART. 2088. The creditor cannot appropriate the things given by way of pledge or
mortgage, or dispose of them. Any stipulation to the contrary is null and void.
The aforequoted provision furnishes the two elements for pactum commissorium to
exist: (1) that there should be a pledge or mortgage wherein a property is pledged or
mortgaged by way of security for the payment of principal obligation; and (2) that
there should be a stipulation for an automatic appropriation by the creditor of the
thing pledged and mortgaged in the event of non-payment of the principal obligation
within the stipulated period.
A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 22
In this case, defendant-appellee in reality extended a P200,000.00 loan to plaintiff-
appellant secured by a mortgage on the property of plaintiff-appellant. The loan was
payable within ninety (90) days, the period within which plaintiff-appellant can
repurchase the property. Plaintiff-appellant will pay P230,000.00 and not
P200,000.00, the P30,000.00 excess is the interest for the loan extended. Failure of
plaintiff-appellee to pay the P230,000.00 within the ninety (90) days period, the
property shall automatically belong to defendant-appellee by virtue of the deed of
sale executed.
Clearly, the agreement entered into by the parties is in the nature of pactum
commissorium. Therefore, the deed of sale should be declared void as we hereby so
declare to be invalid, for being violative of law.
WHEREFORE, foregoing considered, the appealed decision is hereby REVERSED and
SET ASIDE. The questioned Deed of Sale and the cancellation of the TCT No. 195101
issued in favor of plaintiff-appellant and the issuance of TCT No. 267073 issued in
favor of defendant-appellee pursuant to the questioned Deed of Sale is hereby
declared VOID and is hereby ANNULLED. Transfer Certificate of Title No. 195101 of
the Registry of Marikina is hereby ordered REINSTATED. The loan in the amount of
P230,000.00 shall be paid within ninety (90) days from the finality of this decision. In
case of failure to pay the amount of P230,000.00 from the period therein stated, the
property shall be sold at public auction to satisfy the mortgage debt and costs and if
there is an excess, the same is to be given to the owner.
Petitioner now contends that: (1) he is not the real party in interest but A.C. Aguila &
Co., against which this case should have been brought; (2) the judgment in the
ejectment case is a bar to the filing of the complaint for declaration of nullity of a
deed of sale in this case; and (3) the contract between A.C. Aguila & Sons, Co. and
private respondent is a pacto de retro sale and not an equitable mortgage as held by
the appellate court.
The petition is meritorious.
Rule 3, §2 of the Rules of Court of 1964, under which the complaint in this case was
filed, provided that “every action must be prosecuted and defended in the name of
the real party in interest.” A real party in interest is one who would be benefited or
injured by the judgment, or who is entitled to the avails of the suit.7 This ruling is
now embodied in Rule 3, §2 of the 1997 Revised Rules of Civil Procedure. Any
decision rendered against a person who is not a real party in interest in the case
cannot be executed.8 Hence, a complaint filed against such a person should be
dismissed for failure to state a cause of action.9
Under Art. 1768 of the Civil Code, a partnership “has a juridical personality separate
and distinct from that of each of the partners.” The partners cannot be held liable for
 A g e n c y , T r u s t s , a n d P a r t n e r s h i p s P a g e | 23

the obligations of the partnership unless it is shown that the legal fiction of a different
juridical personality is being used for fraudulent, unfair, or illegal purposes.10 In this
case, private respondent has not shown that A.C. Aguila & Sons, Co., as a separate
juridical entity, is being used for fraudulent, unfair, or illegal purposes. Moreover, the
title to the subject property is in the name of A.C. Aguila & Sons, Co. and the
Memorandum of Agreement was executed between private respondent, with the
consent of her late husband, and A.C. Aguila & Sons, Co., represented by petitioner.
Hence, it is the partnership, not its officers or agents, which should be impleaded in
any litigation involving property registered in its name. A violation of this rule will
result in the dismissal of the complaint.11 We cannot understand why both the
Regional Trial Court and the Court of Appeals sidestepped this issue when it was
squarely raised before them by petitioner.

Our conclusion that petitioner is not the real party in interest against whom this
action should be prosecuted makes it unnecessary to discuss the other issues raised
by him in this appeal.

WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the
complaint against petitioner is DISMISSED.

SO ORDERED.

 Bellosillo (Chairman), Quisumbing, Buena and De Leon, Jr., JJ., concur.

Reviewed decision reversed; Complaint dismissed.

Notes.—By real interest is meant a present substantial interest, as distinguished from

a mere expectancy or a future, contingent, subordinate, or consequential interest.
(De Leon vs. Court of Appeals, 277 SCRA 478 [1997])

In a derivative suit, the corporation is the real party in interest while the stockholder
filing suit for the corporation’s behalf is only a nominal party—the corporation should
be included as a party in the suit. (Asset Privatization Trust vs. Court of Appeals, 300
SCRA 579 [1998]) Aguila, Jr. vs. Court of Appeals, 319 SCRA 246, G.R. No. 127347
November 25, 1999