E. MICHAEL & CO., INC-appellant. vs. ADRIANO
ENRIQUEZ-appellee
33 Phil 87 (1915)
Facts:
1.
This is an appeal from a judgment of the CFI dismissing the action
after trial on the ground that the plaintiff did not prove facts sufficient
to constitute a cause of action.
2.
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 (ltd partnership)
3.
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
4.
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. But 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.
5.
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.
Issue:
WON the dismissal by the CFI was proper
Held:
We are of the opinion that the judgment must be
reversed and a new trial be ordered.
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
a. that the document was duly
executed and delivered, where delivery is necessary, and
i. 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 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.
b. that it has been lost or
destroyed.
i. The destruction of the instrument
may be proved by any person knowing the fact.
ii. 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, 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.
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