Beruflich Dokumente
Kultur Dokumente
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* THIRD DIVISION.
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infringes the Statute of Frauds, in Abrenica vs. Gonda (34 Phil. 379
[1916]), this Court ruled that the questioned contract is ratified
when the defense fails to object or asks questions on cross-
examination. As decided in Abrenica and later cases such as Talosig
vs. Vda. de Nieba (43 SCRA 472 [1972]), assuming that parole
evidence was initially inadmissible, the same became competent
and admissible because of the cross-examination. The cross-
examination on the contract is deemed a waiver of the defense of
the statute of frauds.
RESOLUTION
FRANCISCO, J.:
**
In this motion for reconsideration, the Court is called
upon to take a second hard look on its December 1, 1995
decision reversing and setting aside respondent Court of
Appeals judgment of August 12, 1994 that dismissed
petitioner Limketkai Sons Milling Inc.s complaint for
specific performance and damages against private
respondents Bank of Philippine Islands (BPI) and National
Book Store (NBS). Petitioner Limketkai Sons Milling, Inc.,
opposed the motion and filed its Consolidated Comment, to
which private respon-
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23 June 1988
ASSETRADE CO.
70 San Francisco St.
Capitol Subdivision
Pasig, Metro Manila
Attention: Mr. Pedro P. Revilla, Jr.
Managing Partner
Gentlemen:
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5 Id.
6 Id.
631
This authority which is good for thirty (30) days only from date
hereof is non-exclusive and on a first-come first-serve basis.
Very truly yours,
BANK OF THE PHILIPPINE ISLANDS
as trustee of
Philippine Remnants Co., Inc.
(Sgd.) (Sgd.)
FERNANDO J. SISON, III ALFONSO R. ZAMORA
Assistant Vice-President Vice President
[Note: Emphasis supplied]
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08 July 1988
Dear Sir:
Please allow Mr. Pedro Revilla, Jr., whose specimen signature appears
below, and company to enter the premises that you are securing located
at the above-given address for the purpose of conducting an ocular
inspection and verification survey of the same.
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(Sgd.) (Sgd.)
PEDRO REVILLA, JR. ROLANDO V. AROMIN
Assistant Vice-President
July 9, 1988
Gentlemen:
I refer to the authority you gave me on June 23, 1988, in your capacity
as Trustee of the Philippine Remnants Co., Inc., in connection with the
sale of one (1) parcel of land, located along Pasig Boulevard, Bagong Ilog,
Pasig, Metro Manila, with an area of 33,056 square meters and covered
by Transfer Certificate of Title No. 493122.
I am pleased to inform you that I have procured a buyer for the above
described property in the name of Limketkai Sons Milling, Inc., with
office address at Limketkai Building, Greenhills, San Juan, Metro
Manila and represented by its Executive Vice President, Mr. Alfonso Lim.
It is understood therefore, that pursuant to my authority, I shall be
paid a brokers fee of 2% of the gross purchase price in the
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Gentlemen:
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10 Exhibit F states:
Gentlemen:
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(Sgd.) (Sgd.)
ALFONSO R. ZAMORA FERNANDO J. SISON III
Vice President Asst. Vice President
The Chairman
Trust Committee
Bank of the Philippine Islands
Makati, Metro Manila
Dear Sir:
We are in receipt of the letter dated July 20, 1988, signed by Mr.
Alfonso Zamora and Mr. Fernando J. Sison III, copy of which we are
hereto attaching.
Please consider our letter of July 21, 1988 addressed to Mr. Xavier P.
Loinaz, Bank President, and copy furnished your committee, as our reply
thereto.
We are, therefore, hereby adopting and reiterating our former offer to
buy the lot at P1,000.00 per square meter but on cash basis.
Very truly yours,
LIMKETKAI SONS MILLING, INC.
(Sgd.)
ALFONSO U. LIM
Executive Vice-President
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Gentlemen:
(Sgd.) (Sgd.)
NELSON M. BONA FERNANDO J. SISON III
Vice President Asst. Vice President
August 8, 1988
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Asst. Vice-President
BANK OF THE PHILIPPINE ISLANDS
Manila
Gentlemen:
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ATTY. VARGAS:
Before I proceed with the cross-examination of the
witness, your Honor, may we object to the particular
portion of the affidavit which attempt to prove the
existence of averbal contract to sell more specifically
the answers contained in page 3. Par. 1, the whole of
the answer.
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22 43 SCRA 473.
23 34 Phil. 739.
24 Abrenica, (supra) at p. 746, citing Kreigh v. Sherman, 105 Ill., 49; 46
Am. Dig., Century Ed., 932.
25 In Talosig v. Vda. de Nieba, for instance, a deed of sale executed
between the parties was undisputed, as well as the existence of receipts
evidencing payment; while in Abrenica v. Gonda and De Gracia, counsel
for the defendant never raised any objection to the examination of the
witnesses which elicited testimony tending to prove the contract. Only
after the examination was terminated did counsel move to strike out all
the given testimony.
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x x x xxx xxx
COURT:
Objection overruled.
ATTY. VARGAS:
Your Honor, what has been denied by the Court was
the motion for preliminary hearing on affirmative
defenses. The statement made by the witness to prove
that there was a verbal contract to sell is inadmissible
in evidence in this case because an agreement must be
in writing.
COURT:
Go ahead, that has been already overruled.
ATTY. VARGAS:
So may we reiterate our objection with regards to all
other portions of the affidavit which deal on the verbal
contract. (TSN,
26
Feb. 28, 1989, pp. 3-5. Italics
supplied.)
x x x xxx xxx
ATTY. CORNAGO:
Before we proceed, we would like to make of record
our continuing objection in so far as questions and
answers propounded to Pedro Revilla dated February
27, 1989, in so far as questions would illicit (sic)
answers which would be violative of the best evidence
rule in relation to Art. 1403. I refer to questions Nos.
8, 13, 16 and 19 of the affidavit of this witness which
is considered as his direct testimony. (T.S.N., June
29, 1990, p. 2)
ATTY. CORNAGO:
May we make of record our continued objection on the
testimony which is violative of the best evidence rule
in relation to Art. 1403 as contained in the affidavit
particularly questions Nos. 12, 14, 19 and 20 of the
affidavit of Alfonso Lim executed on February 24,
1989. x x x.
(T.S.N., June 28, 1990, p. 8).27
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26 CA Decision, pp. 13-14; Rollo, pp. 56-57; Pedro Revilla, Jr., TSN,
February 28, 1989, pp. 3-5.
27 Memorandum For Respondent Bank of the Phil. Islands, April 24,
1995, p. 16; Rollo, p. 229.
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DISSENTING OPINION
MELO, J.:
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654
The record shows that the two bank officials were the ones
who dictated the terms of payment, as Albino Limketkai
told them that he did not know how to go about drafting
the request to pay on terms. It bears emphasizing that
Exhibit E, the letter asking for term payments, was made
in the afternoon of July 11, 1988 or after the parties
already had a meeting of the minds on the contract.
Respondents ask why did Limketkai, if there was
already a perfected contract to pay at P1,000.00 per square
meter in cash, allow itself to supposedly yield to the BPI
officials blandishments on term payments, knowing that it
would endanger its position?
The answer is that Limketkai did not know. The record
shows that the buyer was dealing in good faith and at
armslength with BPI. It is a natural behavior of the buyer
to trust the word of BPI officials who represent the bank,
as the bank
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We would like to invite your kind attention that we are the First-
come offeror of the lot. And, while the price mentioned in the
authority granted to Mr. Revilla is P1,100.00 per square meter,
nonetheless, in the negotiations between us and your responsible
bank officials done in the presence of Mr. Revilla, the price per
square meter was finally agreed at P1,000.00.
True, we requested for payment of the price on terms but, should
the terms be not accepted by your bank, we were ready to pay in
cash per our understanding with your Mr. Albano and Mr. Aromin
and which we have clearly made known in our July 21, and July 22,
1988 letters. As a matter of fact, even before July 21 and 22, 1988
we personally tendered a check for the entire purchase price to Mr.
Albano but he refused to accept the check because, according to
him, the authority to transact the sale was taken away from him.
The same proposal to pay in cash was made by us in a meeting with
Mr. Bona, Mr. Sison and other Bank officials, and we were told that
the matter will be resolved by the Bank officials concerned in due
time but nothing positive came about. We are still ready to buy the
subject property at P1,000.00 per square meter on cash basis.
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