GR L 1973; (January, 1906) (Digest)
FACTS:
Plaintiff-appellee Tan Diangseng Tan Siu Pic, a member of a partnership formed in China to do business in the Philippines, brought an action to recover from defendant-appellant Lucio Echauz Tan Siuco the value of goods sold to the latter by the partnership. After the death of the managing partner, Yap-Jongco, the plaintiff took charge of the business by agreement with the surviving partners. During trial, due to difficulties in translating Chinese documents and testimony, the parties agreed to refer the case to a referee under Section 135 of the Code of Civil Procedure. The referee rendered a report in favor of the plaintiff, to which no objections were filed. The court adopted the report and entered judgment accordingly. The defendant appealed, contesting the plaintiff’s legal capacity to sue and the sufficiency of the evidence.
ISSUE:
1. Whether the plaintiff had the legal capacity to institute the action.
2. Whether the evidence was sufficient to support the judgment based on the referee’s report.
RULING:
1. On the legal capacity to sue: The Court held that the defendant’s objection was not properly one of “lack of legal capacity to sue” under Section 91(2) of the Code of Civil Procedure, but rather a “defect of parties plaintiff” under Section 91(4), for the plaintiff’s failure to join his co-partners. This defect, appearing on the face of the complaint, was waivable and was deemed waived by the defendant for not raising it by demurrer or answer as required by Section 93.
2. On the sufficiency of evidence: The Court found no reason to overturn the findings of the referee, which were approved by the trial court. The appellant, having moved for a new trial under Section 497(3), had the burden to present all evidence to this Court. An examination of the record presented did not show the referee’s findings on the amount due to be incorrect. Furthermore, the appellant failed to present evidence to support his counterclaim, which was thus considered abandoned.
The judgment of the lower court was AFFIRMED.