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Clemente vs. Galvan Leyte-Samar-Sales and K. Tomassi vs.

Cea and
O. Castrilla
 Plaintiff and defendant organized a civil
partnership which they named "Galvan y  Thisis a suit for damages by the Leyte-
Compañia" to engage in the manufacture Samar Sales Co. (hereinafter called
and sale of paper and other stationery. LESSCO) and Raymond Tomassi against
 Plaintiff ask for dissolution which the the Far Eastern Lumber & Commercial Co.
defendant confirm but with a condition (unregistered commercial partnership
that having covered a deficit incurred by hereinafter called FELCO), Arnold Hall,
the partnership amounting to P4,000 with Fred Brown and Jean Roxas, judgment
his own money, plaintiff reimburse him of against defendants jointly and severally
one-half of said sum. for the amount of P31,589.14 plus costs.
 Juan D. Mencarini, assigned as receiver  The decision having become final, the
and liquidator. Upon acting on his duty, sheriff sold at auction on June 9, 1951 to
the court ordered him to deliver certain Robert Dorfe and Pepito Asturias "all the
machines which were then at Nos. 705- rights, interests, titles and participation"
707 Ylaya Street. of the defendants in certain buildings and
 But before he could take actual properties described in the certificate
possession of said machines, upon the  on June 4, 1951 Olegario Lastrilla filed in
strong opposition of defendant, the court, the case a motion, wherein he claimed to
on motion of the latter, suspended the be the owner by purchase on September
effects of its order 29, 1949, of all the "shares and interests"
 In the meantime the judgments rendered of defendant Fred Brown
in cases Nos. 42794 and 43070 ordering  June 13, 1951, granted Lastrilla's motion.
Clemente to pay a sum of money. On August 14, 1951, modified its order of
 He mortgage the machines with his delivery and merely declared that
nephew, the intervenor (plaintiff in the Lastrilla was entitled to 17 per cent of the
herein case.) For having expired the properties sold.
terms in the mortgage the intervenor  the petitioners seek relief by certiorari,
commenced case No. 49629 to collect his their position being the such orders were
mortgage credit. null and void for lack of jurisdiction.

Issue: W/N the mortgage between Clemente and Issue: W/N the court acted with excess of its
his nephew (intervenor, plaintiff in the case) is jurisdiction?
Rule: Yes. The parties were not notified, and
Rule: No. The machines in contention originally
obviously took no part in the proceedings on the
belonged to the defendant and from him were
motion. A valid judgment cannot be rendered
transferred to the partnership Galvan y Compania.
where there is a want of necessary parties, and a
This being the case, said machines belong to the
court cannot properly adjudicate matters involved
partnership and not to him, and shall belong to it
in a suit when necessary and indispensable parties
until partition is effected according to the result
to the proceedings are not before it. (49 C.J.S., 67.).
thereof after the liquidation. Also, Clemente did
All the defendants would have reasonable motives
not have actual possession of the machines, he
to object to the delivery of 17 per cent of the
could not in any manner mortgage them.
proceeds to Lustrial, because it is so much money
deducted, and for which the plaintiffs might as
another levy on their other holdings or resources.
(NOTE: If Lastrilla was a partner, his remedy is to the prejudice of another, shall appropriate
to claim "the property", not the proceeds of the or misapply any money, goods, or any kind of
sale, which the sheriff is directed by section 14,
personal property which they may have
Rule 39 to deliver unto the judgment creditors.
received as a deposit on commission for
administration or in any other producing the
In other words, the owner of property
wrongfully sold may not voluntarily come to obligation to deliver or return the same,” (as,
court, and insist, "I approve the sale, therefore for example, in commodatum, precarium, and
give me the proceeds because I am the owner". other unilateral contracts which require the
The reason is that the sale was made for the return of the same thing received) does not
judgment creditor (who paid for the fees and include money received for a partnership;
notices), and not for anybody else.)
otherwise the result would be that, if the
partnership, instead of obtaining profits,
Us v. Clarin
suffered losses, as it could not be held liable
civilly for the share of the capitalist partner
who reserved the ownership of the money
brought in by him, it would have to answer to
 Pedro Larin delivered to Pedro Tarug
P172, in order that the latter, in company the charge of estafa, for which it would be
with Eusebio Clarin and Carlos de sufficient to argue that the partnership had
Guzman, might buy and sell mangoes. The received the money under obligation to return
profits were to be divided equally it.)
between him and them.
 Pedro Tarug, Eusebio Clarin, and Carlos
de Guzman did in fact trade in mangoes
and obtained P203 from the business, but
did not comply with the terms of the
contract by delivering to Larin his half of
the profits; neither did they render him
any account of the capital.
 Larin charged them with the crime
of estafa, but the provincial fiscal filed an
information only against Eusebio Clarin
 First Instance of Pampanga, sentenced the
defendant, Eusebio Clarin, to six
months'arresto mayor. The defendant

Issue: W/N the conviction is correct.

Rule: No. The P172.00 having been received by

the partnership, the business commenced and
profits accrued, the action that lies with the
partner who furnished the capital for the recovery
of his money is not a criminal action for estafa, but
a civil one arising from the partnership contract
for a liquidation of the partnership and a levy on
its assets if there should be any.

(NOTE: The then Penal Code provides that

those who are guilty of estafa are those “who,