[No. 10824.

 December 24, 1915.]

E. MICHAEL & Co., INC., plaintiff and appellant, vs. ADRIANO ENRIQUEZ, defendant and
appellee.

1. 1.TRIAL; RECEPTION OF EVIDENCE; RULINGS BY COURT AS TO FORM OF

QUESTIONS.—While trial courts should see to it that they are not imposed on by the
introduction of incompetent testimony or by other evasions of the well established rules of
evidence, they should not be so strict as to the mere form of a question as will result in injustice
when the evidence which is intended to be brought out by the question, and which in all
probability will be brought out by it, is competent and material and is absolutely necessary to
the protection of the party's rights.

1. 2.ID.; ID.; ID.—While trial courts should, of course, be at all times strictly impartial as between
litigants, they may and should go so far as to indicate and suggest the form of questions to and
the method of examination of a witness where it appears that examining counsel, through
inexperience or misunderstanding,

88

8 PHILIPPINE
8 REPORTS
ANNOTATED
Michael & Co. vs.
Enriquez.

1. is unable to extract evidence which is competent and essential to his client's case.

1. 3.EVIDENCE; PRELIMINARIES TO ADMISSION OF SECONDARY EVIDENCE.—Method

of laying the foundation for the introduction of secondary evidence of the contents of a lost
written instrument discussed.

APPEAL from a judgment of the Court of First Instance of Cebu. Wislizenus, J.

The facts are stated in the opinion of the court.
Sepulveda, Pelaez & 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.
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

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of the land described in said instrument. 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 f rom proving that f act. 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.
89
VOL. 33, DECEMBER 89
24, 1915.
Michael & Co. vs. Enriquez.
While the efforts of appellant's counsel to prove the execution and delivery of the document were
at times rather informal and inartificial and objections to such questions were properly sustained,
at others the questions put f or the purpose of proving those facts were well framed and answers
should ha ve 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 the proper foundation for 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 bef ore 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 contents 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, bef ore 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, or by any person who was present and
saw
90
90 PHILIPPINE REPORTS
ANNOTATED
Michael & Co. vs. Enriquez.
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 or places 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

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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 Ioss or destruction, oral evidence may be given 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 f ull inf ormation 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 questions put by appellant's counsel
relative to the due execution and delivery of the instrument of transf er 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
91
VOL. 33, DECEMBER 91
24, 1915.
Michael & Co. vs. Enriquez.
cession. Counsel, if he had desired to identify the instrument to which the question ref erred,
might have done better, perhaps, if he had 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, to 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. Af
ter 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 ref
erence 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 imposed on by the introduction of
fabricated testimony and that injustice shall not result from an evasion of the rules of evidence by
designing persons.
92

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92 PHILIPPINE REPORTS
ANNOTATED
Yu Chin Piao vs. Lim Tuaco.
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 cured 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.
Judgment reversed; new trial ordered.

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