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.1awphil.net

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.