FIRST DIVISION

[G.R. No. 5242. August 6, 1910.]

ALDECOA & CO., plaintiff-appellant, vs. WARNER, BARNES &

CO., LTD., defendant-appellee.

Rosado, Sanz & Opisso, for appellant.

Houssermann, Ortigas, Cohn & Fisher, for appellee.

SYLLABUS

1. PARTNERSHIP; ACCOUNTING; DUTY OF BUSINESS MANAGER. — It

is a general rule of law that he who takes charge of the management of
another's property is bound immediately thereafter to render accounts of his
transactions; and that it is always to be understood that all must be duly
supported by proofs.
2. ID.; ID.; ID. — The acceptance and approval of any account
rendered from a certain date does not excuse nor relieve the manager of a
joint-account partnership from complying with the unquestionable duty of
rendering accounts covering a period of time prior to the said date. They
must be rendered from the time the partnership was actually formed and its
business actually commenced.
3. ID.; ID.; ID.; REVISION OF ACCOUNTS — Once certain accounts
have been approved, which were duly rendered by the manager of a joint-
account partnership, the member of the entity not vested with the character
of manager is not entitled afterwards to claim the revision of the accounts
already approved, unless it shall be proved satisfactorily, by the production
of evidence, that there was fraud, deceit, error, or mistake in the approval of
the said accounts. (Arts. 1265, 1266, Civil Code, and law 30, title 11, 5th
Partida.)
4. ID.; ID.; ID. — One of the duties of the manager of a joint-account
partnership is that of liquidating the assets of the common ownership and to
state the result obtained therefrom in the final rendering of accounts which
he is to present at the conclusion of the partnership, as no person should
enrich himself unjustly at the expense of another. (Art. 243, Code of
Commerce, and decision in cassation given on July 1, 1870, by the supreme
court of Spain.)

DECISION

TORRES, J : p

By a complaint filed on September 26, 1907, the legal representative

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 of Aldecoa & Co., in liquidation, filed suit in the Court of First Instance of
Manila against Warner, Barnes & Co., Ltd., alleging in the first three
paragraphs of their complaint, as a cause of action, that the plaintiff is a
regular collective mercantile association organized in accordance with the
laws of these Islands, duly registered in the mercantile registry, and at
present in liquidation; that the defendant is a joint stock mercantile firm
organized in accordance with the laws of England, registered in the
mercantile registry of Manila, and has done and is still doing business in
these Islands under the name of Warner, Barnes & Co., Ltd., which acquired
the business that was conducted in these Islands by Warner, Barnes & Co.,
the assets, liabilities, and all the obligations of which were assumed by the
defendant.
In the other paragraphs of the complaint, from the fourth to the
twelfth, the plaintiff set forth that, prior to December 1, 1898, Warner,
Barnes & Co. were conducting a business in Albay, the principal object of
which was the purchase of hemp in the pueblos of Legaspi and Tabaco for
the purpose of bringing it to Manila, here to sell it for exportation, and that
on the said date of December 1, 1898, the plaintiff company became
interested in the said business of Warner, Barnes & Co., in Albay and formed
therewith a joint-account partnership whereby Aldecoa & Co., were to share
equally in the gains and losses of the business in Albay; that the defendant is
the successor to all the rights and obligations of Warner, Barnes & Co.,
among which is that of being manager of the said joint-account partnership
with Aldecoa & Co., that the defendant acted, and continues to act as such
manager, and is obliged to render accounts supported by proofs, and to
liquidate the business, which defendant not only has not done, in spite of the
demand made upon it, but it has expressly denied the right of plaintiff to
examine the vouchers, contenting itself with forwarding copies of the entries
in its books, which entries contain errors and omissions that hereinafter will
be mentioned.
Said entries moreover, show the partnership to have commenced on
June 30, 1899, whereas its operations should have commenced and did
commence on December 1, 1898, on which date the joint-account
partnership commenced; that, with respect to the liquidation of the business,
the operations having been closed on December 31, 1903, Warner, Barnes &
Co., Ltd., the defendant, has not realized upon the assets of the firm by
selling the property which constitutes its capital; that the persons who were
the managers and general partners of Warner Barnes & Co., are also
members of Warner, Barnes & Co., Ltd., and are the managers and directors
of that firm in the Philippine Islands and are the same ones who, under the
previous firm name of Warner, Barnes & Co., admitted Aldecoa & Co.,
participant in one-half of the said business, on the 1st day of December,
1898; that the said directors of the defendant company, unlawfully,
maliciously, and criminally conspired with the persons who were managing
the commercial firm of Aldecoa & Co. during the years 1899, 1900, 1901,
1902, and 1903, to defraud the latter of its interest in the said joint-account
partnership, buying the silence of the said managers with respect to the
operations of the joint-account partnership during the time comprised
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 between the 1st of December, 1898, and the 30th of June, 1899, and also
with respect to the errors and omissions in the accounts relating to the
second semester of 1899, and those relating to 1900, 1901, 1902, and 1903.
That the said fraudulent acts were not known to the partners of the
plaintiff firm until the managers, in collusion with the managers of the
defendant firm to defraud and injure the plaintiff firm, had ceased to hold
their positions, to wit, until after the 31st of December, 1906, and that by
reason of this conspiracy to defraud the plaintiffs, the defendants have been
benefited; that the errors and omissions found in the entries of the books
kept by the defendant firm as manager of the joint-account partnership are
those expressed in detail here below:
(a) It appears that between the 10th of July and the 26th of
December, 1899, 43,934 piculs of hemp arrived in Manila for the joint-
account partnership, which were purchased in Legaspi and Tabaco at 13
pesos per picul, and, after charging against this hemp excessive expenses
for collection, storage, freight, fire, marine, and war insurance, personnel,
etc., the defendants, Warner, Barnes & Co., as managers of the joint-account
partnership and commission agents of their joint-account partners, claim
that they purchased the said hemp for themselves, but do no give the price
received from the sale thereof and merely credit it at 13 pesos a picul, when
the average market price at that time was 16.50 pesos a picul; said
defendants thereby injuring plaintiffs to the amount of 76,884.50.
( b) Striking a balance from the amount of hemp debited and that
credited, there results a difference of 4,332.96 piculs not credited which, at
24 pesos a picul, the market price at the time, represents an injury to
plaintiff to the extent of P51,995.52, the said deficit, with respect to the
hemp, pertaining to the period beginning with December 31, 1899, in the
manner shown by the following table:
Invoice &
Dr. Cr.
Piculs Piculs

1899 Dec. 31 86,534.18 43,934

1900 Apr. 30 13,069.97 50,261.78
1900 Dec. 31 67,892.56 71.277
1901 Dec. 31 101,253.31 100.342
1902 Dec. 31 98,074.52 94,279.20
1903 Dec. 31 66,482.49 68,880.96
433,307.03 428,974.07
Lacking 4,332.96
433,307.03 433,307.03
(c) In 1900, on April 30, Messrs, Warners, Barnes and Co., Ltd., give
credit for 5,485 piculs of hemp, at 16 pesos a picul, when the market price at
that time, according to themselves, was P23.78; thereby injuring plaintiffs in
the sum of P21,350.36.
( d) In 1901, on the date of January 31, Messrs. Warner, Barnes and
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 Co., Ltd., give credit for 4,600 piculs of hemp, at 8.93 pesos a picul, when,
according to themselves, the market price at that time was 11.50 pesos a
picul; thereby injuring plaintiffs in the sum of P5,911.
(e) One of the sources of profit of the joint-account partnership
between Aldecoa & Co., and Warner, Barnes & Co., Ltd., was from the
pressing of hemp, which profit is to be credited to the partnership joint-
accounts, when the hemp is realized in Manila, and from this source there
are due to the plaintiffs P149,084.12, in which sum they have been injured
by the defendants. The said credit for pressing is omitted from the books of
Warner, Barnes & Co., Ltd., and should be entered as follows:
1899 21,968 bales, at P1.25 P27,460
1900 to April 30 25,130 bales, at P1.25 31,412.50
1900 May 10 to December
35,639 bales, at P1.25 44,548.75
31
1901 50,151 bales, at P1.25 33,531.25
1902 to July 31 20,314 bales, at P1.25 35,549.50
August 1 to December 31 34,440 bales, at P1.75 60,270
_____ ________
214,467 bales, 295,460.75
bales, lacking, at
2,166 2,707.50
P1.25
______ ________
216,633 bales 298,168.25
20 loose.
______
216,653 bales.
( f) Another error found in the books of Warner, Barnes & Co., Ltd.,
is in connection with the outstanding accounts, which are debited in the sum
of P52,510.36, while only P2,769.24 are credited in the manner set out in the
following statement:
DR.
1899 July 31. W.B. & Co., Tabaco, transferred to net
ac-
count their account sale 92.25 piculs hides
by Kongsee P1,149.46
1899 Dec. 31. For transfer account to cover business
this
semester without statement 16,100.57
1900 Feb. 28. As transferred account items noted
page 114
day-book 18,635.08
1900 Feb. 28. To cover war insurance, 14,000
1900 Feb. 28. To cover outstanding accounts 2,625.25
————
52,510.36

CR.
1900 Feb. 28. As transferred account items noted
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 page 113
day-book 2,769.24
————
There remain, therefore 49,714.12
of which one-half, that is 24,870.56
belongs to the plaintiffs.
( g) In 1900, there is unduly included an item of net account which
should be stricken out, as it does not pertain to this business. This item is
the following:
1900.
June 30. To Miguel Estela. For transfer made to his ac-
count of 5 per cent commission on his hemp,
which should not be paid accordingly to agreement 870.75
Half of this sum, P435.37, must be credited to the
plaintiffs.
( h) On the date of December 26, 1899, Messrs. Warner, Barnes &
Co., Ltd., deduct from the profits which they show as belonging to Aldecoa &
Co., the sum of 7,400, under the appearance of an insurance premium, and
they delivered that sum to the plaintiffs' managers alleged whom Paragraph
conspired, for the purposes of the collusion alleged in observe the truth in
their statement of the facts. Aldecoa & Co., therefore, claim for themselves
this amount, P7,400.
( i) On December 31, 1903, on a capital of P50,000 brought in by
Aldecoa & Co. and to whom it should bear 5 per cent interest from the 8th of
June, 1900, the interest is unduly credited to the joint-account, thereby
injuring the plaintiffs in the sum of P8,750.
( j) On December 31, 1902, Aldecoa & Co. are charged with six
months' interest, amounting to P736.46, on a balance debited against them
for alleged losses, and on June 30, 1903, they are charged with P1,818.58 for
a like reason. These two items should be stricken out, because the accounts
when correctly made show no losses, but profits. By such debits the plaintiff
have been injured in the sum of 1,277.52.
( k) In the entries corresponding to the years 1902 and 1903,
Warner, Barnes & Co., Ltd., give the price of " corriente buena" (current
good), to the grade which, according to the mark, was classified as "abaca
superior (superior hemp); the price of "corriente ordinario" (current
ordinary), to the hemp marked under the classification of " corriente buena"
(current good); the price or "segunda superior" (second superior), to what is
"corriente" or "current," and so on successively; whence results a difference
of price to the value of P233,102.18, in 1902, and P74,274.90, in 1903, one-
half of which differences should be credited to Aldecoa & Co., that is,
153.688.54.
( l) The value of the properties brought in by Warner, Barnes & Co.,
Ltd., to the joint-account, instead of cash capital, is omitted from the
accounts. These properties are the following;
Those purchased from Mariano Roisa, consisting of one galvanized-
iron-roofed warehouse, with hemp press; one house of strong materials and
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 the lot on which it stands, in Tabaco, P12,000.
That purchased from Juana Roisa, which is one small warehouse of
strong materials, in Tabaco, worth about P2,500.
Those purchased from D. Manual Zalvidea situated in Tabaco, which
are: One warehouse of strong materials, with press; another warehouse of
strong materials; and two houses of strong materials, together with the lots
on which they are built, P22,000.
Those purchased from D. Marcos Zubeldia, in Legaspi, which are: Four
warehouses with three hemp presses, and one house of strong materials,
with their corresponding lots, P50,000.
Total cost, P86,500.
The complaint further sets forth if the entries made by the defendant in
its books show in themselves the foregoing errors and omissions, the plaintiff
has good grounds for believing that, if the vouchers were examined, still
greater error would be found, as to which the plaintiff can not formulate its
claims with exactness until the defendant renders it an account,
accompanied by vouchers; that the defendant as manager of the joint-
account partnership with Aldecoa & Co., neglected to comply with what is
especially prescribed in article 243 of the Code of Commerce, as a duty
inherent to its position as manager of the joint account partnership, which is
that of rendering an account with vouchers, and that of liquidating the said
business, for it refuses to furnish the plaintiff the document required for their
examination and verification, and also refuses to realize the firm assets by
selling the warehouses, houses, and other property which constitute the
capital; that, as the defendant refuses to do the things above related, the
plaintiff has no other easy, expenditious and suitable remedy than to
petition the court for a writ of mandamus, wherefore it prays the court to
protect it in its rights and to issue the said mandamus against the defendant,
ordering it, within a date set for this purpose, to render to the court an
account, accompanied by invoices, receipts, and vouchers of the Albay
business, beginning the said account as of December 1, 1898, the date on
which the partnership was formed, and correcting in it the errors and
omissions related in paragraph 9 or this complaint; that the defendant credit
and pay to the plaintiff the sums alleged in that paragraph to be due to
plaintiff, with interest at the legal rate upon the sums omitted and for the
difference between the amount incorrectly debited and credited, from the
respective dates on which they should appear, if correctly entered; that after
the said accounts have been rendered and discussed, judgment be entered
for any balance which may appear in favor of the plaintiff, including the
sums claimed, and legal interest thereon. The plaintiff also prays that the
writ of mandamus fix a term within which the defendant is to liquidate the
business, selling the properties aforementioned and distributing the
proceeds between both the litigants, and that the defendant be adjudged
liable for costs of suit, and plaintiff be granted such other and further relief
as may be found just and equitable.
On November 11, 1907, the defendant filed a written answer and
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 counterclaim against the defendant, and, notwithstanding the overruling of
the demurrer filed by the latter to the counterclaim, the court by writ of
December 4, 1907, ordered that the defendant should, within a period of five
days, make its allegations more specific with respect to certain particulars
mentioned in the order of the court, and both parties being notified thereof,
the defendant, on January 24, 1908, prayed the court to authorize it to file
the attached amended answer instead of the original one.
In the said amended answer the firm of Warner, Barnes & Co., Ltd., the
defendant, states that it denies each and everyone of the allegations of the
complaint, with the exception of those which are expressly admitted in its
answer, and admits the allegation of paragraph 1, 2, and 3 of the complaint.
In answer to the allegations of paragraphs 4 to 12 of the complaint, it admits
that on June 30, 1899, a joint-account partnership was formed between the
plaintiff and the defendant for the operation of a business in Albay, the
principal transactions of which were the purchase of hemp in Legaspi and
Tabaco, of which business one-half of the results, whether losses or gains,
appertained to the plaintiff. Defendant also admits that the said business
continued under the management of the defendant company as manager of
the said joint-account partnership, until December 31, 1903; but it denies all
the other allegations contained in the said paragraphs. For its first special
defense, the defendant alleges that during the period that the said joint-
account partnership existed, the manager thereof, the defendant, rendered
to the plaintiff just and true accounts of its transactions as manager of the
said partnership, which accounts have been approved by the plaintiff, with
the exception of those relating to the year 1903, and as to the latter, that
the same were objected to by plaintiff firm solely upon the grounds
mentioned in clause (k) of paragraph 9 of the complaint, which objections
are wholly unfounded. As its second special defense, the defendant alleges
that more than four years have between the time the alleged right of action
accrued to the plaintiff and the date of the filing of the complaint. For all the
reasons set forth in this amended answer, the defendant prayed that it be
absolved from the complaint, with the costs against the plaintiff.
On and subsequent to the 14th August, 1908, the trial of this cause
was held and oral evidence was introduced by the plaintiff, but no witnesses
were offered by the defendant, which finally moved for a dismissal of the
case, and the court, on December 26 of the same year, 1908, rendered
judgment, dismissing the complaint with respect to the petition for the
rendering of an account, verified by invoices, receipts and vouchers, of the
said Albay business, pertaining to the period comprised from the beginning
of the business to the 31st of December, 1902, inclusive, assessing the cost
against the plaintiff, and opening the second period 1903, in accordance
with the ruling of the court made at the commencement of the hearing. The
plaintiff on being notified of this judgment filed a written exception thereto
and announced his intention to forward through regular channels a bill of
exceptions, and by another writing moved for a new trial on the ground that
the evidence did not justify the judgment rendered, which it alleged was
openly and manifestly contrary to the weight of the evidence and to law. This
motion being denied, to which exception was taken by the plaintiff, the latter
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 duly filed a proper bill of exception which was certified to and forwarded to
this court, together with all the documentary and oral evidence produced at
the trial.
This litigation concerns the rendering of accounts pertaining to the
management of the business of a joint-account partnership formed between
the two litigant companies.
Both the plaintiff and the defendant are in accord that, through verbal
agreement, the said partnership was established, whereby they should share
equally the profits and losses of the business of gathering and storing hemp
in Albay and selling it in Manila for exportation, and that the commercial firm
of Warner, Barnes & Co., Ltd., was the manager of the said joint-account
partnership.
The disagreement between the parties consists in the following points:
First, as to the date when the partnership second, whether the managing
firm did render accounts, duly verified by vouchers, of its management from
the date of the organization of the partnership; third, whether errors and
omissions, prejudicial to the plaintiff, Aldecoa & Co., exist in the partnership
books and in its accounts, and whether, in the management of the said
business, fraudulent acts were committed, also to the plaintiff's injury; and,
fourth, whether the partnership property should be included in the
liquidation of the said business and in the accounts appertaining to the year
1903, when the existence of the partnership came to an end.
With respect to the date on which the said partnership began, the
plaintiff, Aldecoa & Co., submitted evidence unrebutted by that of the
defendant, Warner, Barnes & Co., Ltd., and although the latter averred that
the joint-account partnership began on June, 1899, denying that it was
commenced, or was formed, on December 1, 1898, as the plaintiff says that
it was, it is certain that the defendant has not proved its averment; and if, on
the opening of this case de novo it shall not have done so within such period
as the court may see fit to determine, it will be proper to find in accordance
with the value of the evidence adduced by the plaintiff and to advice the
defendant to render, within a fixed period, accounts, verified by vouchers, of
the management of the partnership business and pertaining to the seven
months from December 1, 1898, to June 29, 1899; and, in view of the
evidence adduced by the plaintiff in proof of the aforesaid first point, if the
defendant does not produce other evidence in rebutall, they must, for some
reason, be expressly rejected in the judgment, if they are not to be taken
into account in reaching the conclusions or in considering the case upon the
merits.
As regards the second point, we agree with the opinion expressed by
the lower court and find that the firm of Warner, Barnes & Co., Ltd., did
render accounts from June 30, 1899, to December 31, 1902, inasmuch as the
very evidence introduced by the plaintiff showed that the said accounts had
been rendered and were approved by it, according to the context of its own
letters of the dates of July 27, 1907, and February 19, 1903. Therefore, the
plaintiff is in nowise entitled, and has no right of action to compel the
defendant to render accounts pertaining to that period, they having already
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 been rendered and duly approved.
It is a rule of law generally observed that he who takes charge of the
management of another's property, is bound immediately thereafter to
render accounts covering his transactions; and that it is always to be
understood that all accounts rendered must be duly substantiated by
vouchers.
If it is a fact admitted by both litigating parties that Warner, Barnes &
Co., Ltd., was the manager of the business of the joint-account partnership
formed between it and Aldecoa & Co., it is unquestionable that it was and is
the defendant's duty to render accounts of the management of the business,
as it partially has done. Although the defendant has not proved, as it should
have done, that it complied with its duty of rendering accounts of its
management, since the letters themselves exhibited by the plaintiff, and
duly authenticated as being written by the latter, prove that the defendant
did render accounts from June 30, 1899, to December 31, 1902, no legal
reason whatever exists for not accepting the finding of the lower court which
decided that it had been proved that accounts were pertaining to the period
mentioned and that the said accounts were approved by the plaintiff.
The procedure of the plaintiff is truly inexplicable in accepting and
approving accounts that were rendered to it and which only begin with June
30, 1899, inasmuch as such approval would appear to indicate that it agreed
to the claim made by the defendant that the partnership commenced on the
said date; but even so, once that it is proved that the actual date on which
the partnership was formed was December 1, 1898, and that it is not shown
that the defendant has rendered accounts corresponding to the seven
months subsequent to the said date of December 1, the acceptation and
approval of accounts rendered since the 30th of June 1899, does not excuse
nor release the manager of the partnership, the defendant, from complying
with its unquestionable duty of rendering accounts covering the aforesaid
seven months. The presumption must be sustained until proof to the
contrary is presented.
Moreover, the approval of accounts corresponding to the years from
June 30, 1899, to December 31, 1902, does not imply that the said approved
accounts comprise those pertaining to the seven months mentioned,
December 1, 1898, to June 29, 1899, because the defendant, the accountant,
denies that the partnership commenced on the aforesaid date of December
1st, asserting it began on June 30, 1899; wherefore, on defendant's
rendering those accounts, it is to be presumed that it did so from the date
which it avers was that of the formation of the partnership and the beginning
of the business, and it is therefore evident that it has not rendered accounts
pertaining to the seven months mentioned.
With respect to the third point relative to whether errors and omissions
prejudicial to the plaintiff, Aldecoa & Co., exist in the partnership books and
in its accounts, and whether, in the management of the said business,
fraudulent acts were committed to plaintiff's injury, it must be borne in mind
that once the accounts have been approved which were rendered by the
managing firm of Warner, Barnes & Co., Ltd., the plaintiff, Aldecoa & Co., is
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 not entitled afterwards to claim a revision of the same, unless it shows that
there was fraud, deceit, error, or mistake in the approval of the said
accounts.
Under the hypothesis, Aldecoa & Co. are strictly obliged to prove the
error, omissions, and fraudulent acts attributed to the defendant, in
connection with the accounts already rendered, and approved by them, in
order that the same may revised in accordance with law and the
jurisprudence of the courts. (Pastor vs. Nicasio, 6 Phil. Rep., 152.)
The approval of an account does not prevent its subsequent, or at least
correction, if it is proved in a satisfactory manner that there was deceit and
fraud or error and omission in it. (Art. 1265, Civil Code.)
Law 30, title 11, 5th Partida, provides, among other things, the
following:
"That is precisely what we say should be observed, in all other
accounts that men make among themselves, in connection with the
things which belong to them. Notwithstanding that they may
acknowledge the settlement of the accounts between them and
promise never to bring them up against, if it be known in truth that he
who gave the account or had the things in his keeping, concealed
anything deceitfully, or committed other fraud against those who have
a share in such thing, then neither the suit, nor such previous status
and promise shall avail; on the contrary, we say that they may sue him
to compel him to remedy the deceit he committed against them, and
to pay all the damages and losses that have accrued to them by
reason thereof; provided, however, he especially shall not have
repaired the deceit that he committed."
So that it does not matter that the accounts pertaining to the years
comprised between the 30th of June, 1899, and the 31st of December, 1902,
may have succeed in proving Aldecoa & Co. Whenever this firm shall
succeed in proving that there was error, omission, fraud, or deceit in these
accounts, they may be duly revised, according to law.
With regard to the last point in controversy, the defendant agrees that
the plaintiff has not yet approved the accounts that the former rendered,
pertaining to 1903, the last year of the existence of the joint-account
partnership; and, for this reason, it was provided in the judgment appealed
from the trial should continue with respect to the said accounts
corresponding to the year 1903, in order that the plaintiff might make such
objections and statements in regard to the same as he deemed proper, and
adduce the evidence conductive to prove his claim, in accordance with law.
It is one of the duties of the manager of a joint-account partnership, to
liquidate the assets that form the common property, and to state the result
obtained therefrom in the final rendering of the accounts which he is to
present at the conclusion of the partnership.
Article 243, of the Code of Commerce says:
"The liquidation shall be effected by the manager, and after the
transactions have been concluded he shall render a proper account of
its results."
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 It is a recognized fact, and one admitted by both parties, that the
partnership herein concerned concluded its transactions on December 31,
1903; wherefore the firm of Warner, Barnes & Co., Ltd., the manager of the
partnership, in declaring the latter's transactions concluded and in rendering
duly verified accounts of its results, owes the duty to include therein the
property and effects belonging to the partnership in common. This rule was
established by the supreme court of Spain in applying a similar precept of
the mercantile code, in its decision on an appeal in cassation of the 1st of
July, 1870, setting up the following doctrine:
"In case of the liquidation of a company of this kind (denominated
joint-account partnership), inasmuch as the sale of the firm assets is
necessarily uncertain and eventual, consideration the greater or lesser
selling price that may be obtained from the property and effects which
comprise such assets, the price received should be allotted in the same
proportion as that fixed in the contract for the division of the profits
and losses, for otherwise one of the partners would be benefited to the
detriment and loss of his copartners."
This doctrine is perfectly legal and in accord with justice, as no person
should enrich himself wrongfully at the expense of another; and, in the case
under review, should it be duly and fully proved that the managing firm
acquired realty in the name and at the expense of the joint-account
partnership with the plaintiff firm, it is just that, in liquidating the property of
common ownership, such realty should be divided between the partners in
the same manner as were the profits and losses during the existence of the
business, from the beginning of the partnership to the date of its dissolution.
By the facts herein above set forth, it has been shown that in the
present of this cause resulting from the rendering of the judgment appealed
from, it has not been possible to decide in a final manner the various issues
brought up and controverted by the litigants, for, though it be granted as
proved that the defendant firm, the manager of the said partnership, has in
fact rendered accounts pertaining to the years from June 30, 1899, to
December 31, 1902, as found in the said judgment, there still remain to be
decided the four points or questions of fact before specified. Wherefore, and
in accordance with section 496 of the Code of Civil Procedure, a new trial
should be held for the purpose of a final decision of all the questions
involved in this litigation, and accordingly the judgment appealed from is set
aside and this cause shall be returned to the court below, accompanied by a
certified copy of this decision, for the holding of a new trial, for which
purpose, the defendant shall be advised that it must, within a fixed period,
render an account, verified by vouchers, of its management of the business
of the joint-account partnership with the plaintiff, pertaining to the months
from December 1, 1898, to June 29, 1899, and to the twelve months of the
year 1903, unless it shall prove in a satisfactory manner that the said
partnership began on June 30, 1899, contrary to the averment of the plaintiff
supported by evidence that it commenced on December 1, 1898, in which
case the said rendering of accounts shall be restricted to the twelve months
of the year 1903, in the accounts of which last period must be included all
the property that is found to belong to the said partnership; second, in the
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 examination of the accounts that may be found to have been rendered, the
parties may allege and prove facts conductive to their revision or approval
besides availing themselves of the evidence already adduced at trial; and,
third, with respect to the accounts corresponding to the period from June 30,
1899, to December 31, 1902, already approved, the trial court shall proceed
in accordance with law, duly considering the errors, omissions, mistakes and
fraudulent or deceitful acts that have been alleged or may specifically be
alleged in rejecting the said approved accounts, as well as the evidence
introduced by both parties, and it shall be careful to decide in its final
judgment all the issues raised between the parties in the course of this
litigation and to provide such remedies as are proper in regard to their
respective claims. So ordered.
Johnson, Moreland and Trent, JJ., concur.

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