154962-1933-Bastida_v._Menzi_Co._Inc.20180419-1159-1cbuzr9.pdf - EN BANC[G.R No 35840 FRANCISCO BASTIDA plaintiff-appellee vs MENZI CO INC J M MENZI and

154962-1933-Bastida_v._Menzi_Co._Inc.20180419-1159-1cbuzr9.pdf

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EN BANC[G.R. No. 35840. March 31, 1933.]FRANCISCO BASTIDAFRANCISCO BASTIDA,plaintiff-appellee, vsvs. MENZI & CO., INC., J. M.. MENZI & CO., INC., J. M.MENZI and P. C. SCHLOBOHMMENZI and P. C. SCHLOBOHM, defendants. MENZI & CO., INC.MENZI & CO., INC.,appellant.Romualdez Brothers andHarvey & O'Brien, for appellant.Jose M. Casal, Alberto Barretto andGibbs & McDonough, for appellee.SYLLABUSSYLLABUS1.CONTRACT OF EMPLOYMENT; RELATIONSHIP BETWEEN EMPLOYERAND EMPLOYEE; COPARTNERSHIP. — The relationship established between thedefendant corporation and the plaintiff by their contract was not that of partners, butthat of employer and employee, whereby the plaintiff was to receive 35 per cent of thenet pro>ts of the fertilizer business of the defendant corporation in compensation forhis services of supervising the mixing of the fertilizers. Neither the provisions of thecontract nor the conduct of the parties prior or subsequent to its execution justi>ed thefinding that it was a contract of copartnership.2.ID.; ID.; ID. — The trial court relied on article 116 of the Code of Commerce,which provides that articles of association by which two or more persons obligatethemselves to place in a common fund any property, industry, or any of these things, inorder to obtain pro>t, shall be commercial, no matter what its class may be, provided ithas been established in accordance with the provisions of that Code; but in the case atbar there was no common fund, that is, a fund belonging to the parties as joint ownersor partners. Instead of receiving a >xed salary or a >xed salary and a small percentageof the net pro>ts, the plaintiff was to receive 35 per cent of the net pro>ts ascompensation for his services. It is now well settled that the old rule that sharingprofits as profits made one a partner is overthrown. (Mechem, second edition, p. 89.)3.ID.; ID.; ID. — It is nowhere stated in Exhibit A that the parties wereestablishing a partnership or intended to become partners. Great stress is laid by thetrial judge and plaintiff's attorneys on the fact that in the sixth paragraph of said exhibitthe phrase "en sociedad con" is used in providing that defendant corporation shall notengage in the business of prepared fertilizers except in association with the plaintiff (ensociedad con). The fact is that en sociedad con, as there used, merely means enreunion con or in association with, and does not carry the meaning of "in partnershipwith". Although the word "associated" may be related etymologically to the Spanishword "socio", meaning partner, it does not in its common acceptation imply anypartnership relation.4.PLEADINGS; ADMISSIBILITY AS EVIDENCE. — "Where amended pleadingshave been >led, allegations in the original pleadings are held admissible, but in suchcase the original pleadings can have no effect, unless formally offered in evidence."(Jones on Evidence, sec. 273; Lucido vs. Calupitan, 27 Phil., 148.)CD Technologies Asia, Inc. © 2018cdasiaonline.com
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D E C I S I O ND E C I S I O NVICKERSVICKERS,J p:This is an appeal by Menzi & Co., Inc., one of the defendants, from a decision of
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