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VICENTE
POLISTICO, ET AL.,
G.R. No. 31057 September 7, 1929
VILLAMOR, J.:
FACTS:
This is an action to bring about liquidation of
the funds and property of the association
called "Turnuhan Polistico & Co." The plaintiffs
were members or shareholders, and the
defendants were designated as presidenttreasurer, directors and secretary of said
association. This case is brought for 2nd time.
In the 1 st one, the court court held then that
in an action against the officers of a voluntary
association to wind up its affairs and enforce
an accounting for money and property in their
possessions, it is not necessary that all
members of the association be made parties
to the action. The court appointed
commissioner of Insular Auditor's Office, to
examine all the books, documents, and
accounts of "Turnuhan Polistico & Co.," and to
receive whatever evidence. Commissioner's
report show a balance of P24, 607.80 cash on
hand. Despite defendants objection to the
report, the trial court rendered judgment
holding said association is unlawful. And
sentenced defendants jointly and severally to
return the amount and documents to the
plaintiffs and members of the association. The
Appellant alleged that the association being
unlawful, some charitable institution to whom
the partnership funds may be ordered to be
turned over, should be included, as a party
defendant. Referring to article 1666 of the
Civil Code, which provides: A partnership
must have a lawful object, and must be
established for the common benefit of the
partners. When the dissolution of an unlawful
partnership is decreed, the profits shall be
given to charitable institutions of the domicile
of the partnership, or, in default of such, to
those of the province.
ISSUE:
Whether or not charitable institution is a
necessary party to this case.
HELD:
No. No charitable institution is a necessary
party in the present case of determination of
the rights of the parties. The action which
may arise from said article, in the case of
unlawful partnership, is that for the recovery
of the amounts paid by the member from
those in charge of the administration of said
partnership, and it is not necessary for the
ISSUE:
WON plaintiff acquired the right to demand
rescission of the partnership contract
according to article 1124 of the Civil Code.
HELD:
The SC ruled that owing to the defendants
failure to pay to the partnership the whole
amount which he bound himself to pay, he
became indebted to the partnership for the
remainder, with interest and any damages
occasioned thereby, but the plaintiff did not
thereby acquire the right to demand
rescission of the partnership contract
according to article 1124 of the Code. Article
1124 cannot be applied to the case in
question, because it refers to the resolution of
obligations in general, whereas articles 1681
and 1682 specifically refer to the contract of
partnership in particular. And it is a well
known principle that special provisions prevail
over general provisions. Hence, SC dismissed
the appeal left the decision appealed from in
full force.
Pang Lim vs Lo Seng
Facts:
Lo Seng and Pang Lim were partners in
the business of running a distillery,
known as "El Progreso
The land on which said distillery is
located was to the firm of Lo Seng and
Co. for the term of three years.
Upon the expiration of this lease a new
written contract, in the making of
which Lo Yao was represented by one
Lo Shui as attorney in fact, became
effective whereby the lease was
extended for fifteen years.
Pang Lim sold all his interest in the
distillery to his partner Lo Seng, thus
placing the latter in the positionof sole
owner
Lo Shui, again acting as attorney in
fact of Lo Yao, executed and
acknowledged before a notary public a
deed purporting to convey to Pang Lim
and another Chinaman named Benito
Galvez, the entire distilleryplant. But