Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10824 December 24, 1915

E. MICHAEL & CO., INC., plaintiff-appellant,

vs.
ADRIANO ENRIQUEZ, defendant-appellee.

Sepulveda, Pelaez and Espina for appellant.

No appearance for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu dismissing the
action after trial on the ground that the plaintiff did not prove facts sufficient to
constitute a cause of action.

We are of the opinion that the judgment must be reversed and a new trial ordered.itc-a1f

The action is based on a sale with a right to repurchase made by Adriano Enriquez in favor
of E. Michael and E. Michael & Co., sociedad en comandita, of which appellant claims to be
the successor, by reason of an instrument, duly executed and delivered by said
companies to appellant, transferring property, business and assets of every kind,
including the land which is the subject of this litigation. It is alleged in the complaint that
the time to repurchase having expired, the title to the property became absolute in
appellant and that it is accordingly the owner of the land described in said instruments.
On the trial appellant sought to prove the execution and delivery of the conveyance
transferring to it the land described in the sale with right to repurchase. The trial court
prevented appellant from the proving the fact. Appellant also attempted to prove the
fact that the instrument so executed and delivered was lost, it being his purpose to lay
the basis for the introduction of secondary evidence as to its contents. The trial court also
prevented appellant from proving that fact.

While the efforts of appellant's counsel to prove the execution and delivery were at times
rather informal and inartificial and objections to such questions were properly sustained,
at others the questions put for the purpose of proving those facts were well framed and
answer should have been allowed to them; but, even in such cases, the trial court also
sustained objections to the questions and the evidence sought to be adduced was
excluded. The same may be said with respect to the attempts to establish the loss of the
document. Exceptions were taken by plaintiff's counsel to all adverse rulings of the court
respecting the admission of evidence tending to establish the execution and delivery and
the subsequent loss of the document in question, thus laying them proper foundation for
the bringing up the rulings of the court on those matters.

Trial courts do well in refusing at all times to permit the introduction of incompetent
evidence and particularly secondary evidence of the contents of written instruments
unless the facts required by the Code of Civil Procedure as the conditions precedent for
such evidence are clearly shown to exist. Section 321 of the Code provides: "An original
writing must be produced and proved, except as otherwise provided in this Act. If it has
been lost, proof of the loss must first be made before evidence can be given of its
contents. Upon such proof being made, together with proof of the due execution of the
writing, its contents may be proved by a copy or by a recital of its contests in some
authentic document, or by the recollection of a witness."

As will be seen from this section, the writing itself must be produced unless it has been
lost or destroyed in which case, before its contents may be proved by other evidence, it
must be shown by the person offering the secondary evidence (1) that the document was
duly executed and delivered, where delivery is necessary, and (2) that it has been lost or
destroyed. The execution and delivery of the document may be established by the person
or persons who executed it, by the person before whom its execution was acknowledged,
pr by any person who was present and saw it executed and delivered or who, after its
execution and delivery, saw it and recognized the signatures; or by a person to whom the
parties to the instruments had previously confessed the execution thereof. The
destruction of the instrument may be proved by any person knowing the fact. The loss
may be shown by any person who knew the fact of its loss, or by anyone who has made,
in the judgment of the court, a sufficient examination in the place where the document
or papers of similar character are usually kept by the person in whose custody the
document lost was, and has been unable to find it; or who has made any other
investigation which is sufficient to satisfy the court that the instrument is indeed lost. If it
appears, on an attempt to prove the loss, that the document is in fact in existence, then
the proof of the loss or destruction fails and secondary evidence is inadmissible unless
section 322 of the Code of Civil Procedure should be applicable. After proper proof of the
due execution and delivery of the instrument and its loss or destruction, oral evidence
may be give of its contents by any person who signed the document, or who read it, or
who heard it read knowing, or it being proved from other sources, that the document so
read was the one in question. Such evidence may also be given by any person who was
present when the contents of the document were talked over between the parties
thereto to such an extent as to give him reasonably full information as to its contents; or
the contents may be proved by any person to whom the parties to the instrument have
confessed or stated the contents thereof; or by a copy thereof; or by a recital of its
contents in some authentic document.

Objections were sustained by the trial court to several question put by appellants counsel
relative to the due execution and delivery of the instrument of transfer between the
partnership of E. Michael & Co., sociedad en comandita, and appellant, on the ground that
counsel, in an attempt to identify the document to which his question referred, described
or characterized it as an instrument of transfer or cession. Counsel, if he had desired to
identify the instrument to which the question referred, might have done better, perhaps,
if he asked the witness if he knew of the execution of an instrument between appellant
and its predecessor in interest relating to the lands described in the complaint or to the
property and business of E. Michael & Co., sociedad en comandita, instead of asking him if
he knew of the execution of a document between appellant and his predecessors in
interest transferring the lands in question, or the property and business of E. Michael &
Co., sociedad en comandita, the appellant. Having obtained an affirmative answer to the
question indicated counsel could then have shown how the witness came to know of the
execution or existence of the document, and, if such circumstances disclosed that the
witness was sufficiently acquainted with the facts, he would have been allowed to testify
to its execution and delivery. After this had been done the document might then have
been presented for identification and when identified, offered in evidence. If its contents
showed that it referred to the lands described in the complaint, its admissibility would
have been instantly evident.

The mere fact that counsel for appellant, in putting his question to the witness,
characterized or described the instrument as one of transfer, while objectionable, was
not sufficient to cut him off altogether from proving the execution and delivery of the
document if other requisites were present. While it is always best to avoid
characterizations of that kind, its harm is minimized where the case is tried before a court
instead of a jury, the court well knowing that it cannot accept the characterization as
evidence but must go to the document itself or the evidence of its contents to determine
its nature and legal effect. Trial courts should not be so strict with reference to matters of
the character under discussion as to cause a miscarriage of justice; but on the other hand,
they should see to it that they are not impose on by the introduction of fabricated
testimony and that injustice shall not result from an evasion of the rules of evidence by
designing persons.

We are of the opinion on the whole record that proper questions, tending to the
production of very material and competent evidence, were put by plaintiff's counsel,
objections to which were sustained by the trial court; and that the error thus committed
was not cure by subsequent questions and answers or by the introduction of the same
evidence in different manner or form.

The judgment must be reversed and a new trial ordered without costs in this instance. So
ordered.

Arellano, C.J., Torres, Carson, Trent and Araullo, JJ., concur.