FIRST DIVISION

[G.R. No. 2484. April 11, 1906.]

JOHN FORTIS , plaintiff-appellee, vs . GUTIERREZ HERMANOS ,

defendants-appellants.

Hartigan, Rohde & Gutierrez, for appellants.

W. A. Kincaid, for appellee.

SYLLABUS

1. CIVIL PROCEDURE, ERROR; JUDGMENT; REVERSAL. — Error not prejudicial

is no ground for the reversal of a judgment. (Sec. 503, Code of Civil Procedure.)
2. PARTNERSHIP; MANAGER; BOOKKEEPER; CONTRACT; VALIDITY. — The
general manager of a general partnership has authority to employ a bookkeeper, and a
contract thus made in 1900 was valid, though not in writing.
3. CONTRACT; BOOKKEEPER; SALARY. — By the terms of the contract the
salary of the bookkeeper was to be 5 per cent of the net profits of the business: Held,
That this contract did not make the bookkeeper a partner.
4. CIVIL PROCEDURE; ACTION; PARTNERSHIP. — In an action against a
partnership to recover a debt due from it to the plaintiff, section 383, paragraph 7, of
the Code of Civil Procedure does not prohibit the plaintiff from testifying to a
conversation between himself and a then partner who had died prior to the trial of the
action.
5. AGENT; DISBURSEMENTS. — In an action by an agent to recover the
amount of certain disbursements and not compensation for service, the article of the
Civil Code applicable to the case is article 1728, and not article 1711.

DECISION

WILLARD , J : p

Plaintiff, an employee of defendants during the years 1900, 1901, and 1902,
brought this action to recover a balance due him as salary for the year 1902. He alleged
that he was entitled, as salary, to 5 per cent of the net pro ts of the business of the
defendants for said year. The complaint also contained a cause of action for the sum of
600 pesos, money expended by plaintiff for the defendants during the year 1903. The
court below, in its judgment, found that the contract had been made as claimed by the
plaintiff; that 5 per cent of the net pro ts of the business for the year 1902 amounted
to 26,378.68 pesos, Mexican currency; that the plaintiff had received on account of
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 such salary 12,811.75 pesos, Mexican currency, and ordered judgment against the
defendants for the sum 13,566.93 pesos, Mexican currency, with interest thereon from
December 31, 1904. The court also ordered judgment against the defendants for the
600 pesos mentioned in the complaint, and interest thereon. The total judgment
rendered against the defendants in favor of the plaintiff, reduced to Philippine currency,
amounted to P13,025.40. The defendants moved for a new trial, which was denied, and
they have brought the case here by bill of exceptions.
(1) The evidence is suf cient to support the nding of the court below to the
effect that the plaintiff worked for the defendants during the year 1902 under a
contract by which he was to receive as compensation 5 per cent of the net pro ts of
the business. The contract was made on the part of the defendants by Miguel Alonzo
Gutierrez. By the provisions of the articles of partnership he was made one of the
managers of the company, with full power to transact all of the business thereof. As
such manager he had authority to make a contract of employment with the plaintiff.
(2) Before answering in the court below, the defendants presented a motion
that the complaint be made more de nite and certain. This motion was denied. To the
order denying it the defendants excepted, and they have assigned as error such ruling
of the court below. There is nothing in the record to show that the defendants were in
any way prejudiced by this ruling of the court below. If it were error it was error without
prejudice, and not ground for reversal. (Sec. 503, Code of Civil Procedure.)
(3) It is claimed by the appellants that the contract alleged in the complaint
made the plaintiff a copartner of the defendants in the business which they were
carrying on. This contention can not be sustained. It was a mere contract of
employment. The plaintiff had no voice nor vote in the management of the affairs of the
company. The fact that the compensation received by him was to be determined with
reference to the pro ts made by the defendants in their business did not in any sense
make by a partner therein. The articles of partnership between the defendants provided
that the pro ts should be divided among the partners named in a certain proportion.
The contract made between the plaintiff and the then manager of the defendant
partnership did not in any way vary or modify this provision of the articles of
partnership. The pro ts of the business could not be determined until all of the
expenses had been paid. A part of the expenses to be paid for the year 1902 was the
salary of the plaintiff. That salary had to be deducted before the net pro ts of the
business, which were to be divided among the partners, could be ascertained. It was
undoubtedly necessary in order to determine what the salary of the plaintiff was, to
determine what the pro ts of the business were, after paying all of the expenses except
his, but that determination was not the nal determination of the net pro ts of the
business. It was made for the purpose of xing the basis upon which his compensation
should be determined.
(4) It was no necessary that the contract between the plaintiff and the
defendants should be made in writing. (Thunga Chui vs. Que Bentec, 1 1 Off. Gaz., 818,
October 8, 1903.)
(5) It appeared that Miguel Alonzo Gutierrez, with whom the plaintiff had
made the contract, had died prior to the trial of the action, and the defendants claim
that by reasons of the provisions of section 383, paragraph 7, of the Code of Civil
Procedure, plaintiff could not be a witness at the trial. That paragraph provides that
parties to an action against an executor or administrator upon a claim or demand
against the estate of a deceased person can not testify as to any matter of fact
occurring before the death of such deceased person. This action was not brought
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 against the administrator of Miguel Alonzo, nor was it brought upon a claim against his
estate. It was brought against a partnership which was in existence at the time of the
trial of the action, and which was juridical person. The fact that Miguel Alonzo had been
a partner in this company, and that his interest therein might be affected by the result of
this suit, is not suf cient to bring the case within the provisions of the section above
cited.
(6) The plaintiff was allowed to testify against the objection and exception of
the defendants, that he had been paid as salary for the year 1900 a part of the pro ts of
the business. This evidence was competent for the purpose of corroborating the
testimony of the plaintiff as to the existence of the contract set out in the complaint.
(7) The plaintiff was allowed to testify as to the contents of a certain letter
written by Miguel Gutierrez, one of the partners in the defendant company, to Miguel
Alonzo Gutierrez, another partner, which letter was read to plaintiff by Miguel Alonzo. It
is not necessary to inquire whether the court committed an error in admitting this
evidence. The case already made by the plaintiff was in itself suf cient to prove the
contract without reference to this letter. The error, if any there were, was not prejudicial,
and is not ground for reversal. (Sec. 503, Code of Civil Procedure.)
(8) For the purpose of proving what the pro ts of the defendants were for
the year 1902, the plaintiff presented in evidence the ledger of defendants, which
contained an entry made on the 31st of December, 1902, as follows:
"Perdidas y Ganancias ...................................... a Varios Ps. 527,573.66
Utilidades liquidas obtenidas durante el ano y que abonamos conforme a la
proporcion que hemos establecido segun el convenio de sociedad."
The defendant presented as a witness on, the subject of pro ts Miguel Gutierrez,
one of the defendants, who testi ed, among other things, that there were no pro ts
during the year 1902, but, on the contrary, that the company suffered considerable loss
during that year. We do not think the evidence of this witness suf ciently de nite and
certain to overcome the positive evidence furnished by the books of the defendants
themselves.
(9) In reference to the cause of action relating to the 600 pesos, it appears
that the plaintiff left the employ of the defendants on the 19th of March, 1903; that at
their request he went to Hongkong, and was there for about two months looking after
the business of the defendants in the matter of the repair of a certain steamship. The
appellants in their brief say that the plaintiff is entitled to no compensation for his
services thus rendered, because by the provisions of article 1711 of the Civil Code, in
the absence of an agreement to the contrary, the contract of agency is supposed to be
gratuitous. That article i not applicable to this case, because the amount of 600 pesos
not claimed as compensation for services but as a reimbursement for money expended
by the plaintiff in the business of the defendants. The article of the code that is
applicable is article 1728.
The judgment of the court below is af rmed, with the costs, of this instance
against the appellants. After the expiration of twenty days from the date of this
decision let nal judgment be entered herein, and ten days thereafter let the case be
remanded to the lower court for execution. So ordered.
Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.

Footnotes

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 1. 2 Phil. Rep., 561.

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