Jay Mark A.

Santos
2016-166335

COMMENT IN THE CASE OF KIEL vs. SABERT:

I agree on the decision of the Supreme Court that the testimony or declaration of KIEL is
inadmissible as evidence in court for being made after the existence of the partnership though the
said partnership was able to prove by evidence presented.

In this case, after a partner died, the remaining partner sought to recover his share in the
partnership; unfortunately, no partnership agreement in writing was entered into by Kiel and
Sabert. Hence the problem here is whether the verbal partnership formed has been proved.

If we eliminate the testimony of Kiel and consider the relevant testimony of other
witnesses we cannot assure the rule of partnership based on the testimony or declarations of one
partner, not made in the presence of his co-partner, thus, are not competent to prove
the existence of a partnership. The existence of a partnership cannot be established by general
reputation, rumor, or hearsay.

Under Rule 130 Section 29 of the Rules of Court, not every declaration or act made or
done by a partner or agent is admissible against the other partners or the principal For the
admission of a co-partners or agent to be admissible, the following requisites must concur:

(a) The declaration or act of the partner and agent must have been made or done within the scope of
his authority;

(b) The declaration or act of the partner and agent must have been made or done during
the existence of the partnership or agency, and the person making the declaration is still a partner
or an agent; and

(c) The existence of the partnership or agency is proven by evidence other than the declaration or act
of the partner and agent.

It is clear that the declaration of KIEL is done after the existence of the partnership since
partnership involves fiduciary relationships and the death of Sabert dissolves the partnership and
any declaration made before the partnership or agency existed or those made after are not
admissible against the other partners or the principal but remains admissible against the partner
or agent making the declaration. It is also necessary for the application of the exception that the
proof of the agency or partnership be from a source independent of the declaration made by the
partner or agent.

However, statements made after a partnership has been dissolved does not fall within this
exception, but where the admission are made in connection with the winding up of the
partnership affairs, said admissions are still admissible as the partner is acting as an agent of his
co-partners in winding up.