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PHILIPPINE REPORTS ANNOTATED VOLUME 033

[No. 10824. December 24, 1915.]


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

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PHILIPPINE REPORTS ANNOTATED


Michael & Co. vs. Enriquez.

is unable to extract evidence which is competent and


essential to his client's case.
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


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PHILIPPINE REPORTS ANNOTATED VOLUME 033

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 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 24, 1915.

89

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
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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
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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
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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 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 24, 1915.

91

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,
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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.
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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,
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without costs in this instance. So ordered.


Arellano, C. J., Torres, Carson, Trent, and Araullo, JJ.,
concur.
Judgment reversed; new trial ordered.
____________

Copyright 2016 Central Book Supply, Inc. All rights reserved.

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