PURCHASE AND SALE; CONTRACT OF PURCHASE AND SALE OF REAL PROPERTY; EXISTENCE OF AGREEMENT NOT INCLUDED IN THE WRITTEN CONTRACT; BURDEN OF PROOF; EVIDENCE MUST BE CONVINCING AND CREDIBLE. — In affirmative averment the onus probandi falls on pleader’s shoulder. The duty of showing to the satisfaction of the Court that verbal stipulation actually took place in addition to written agreement between the parties devolves upon the pleader. Uncorroborated testimony of plaintiff given with the help of leading questions from her own attorney and of information given to her by the lower court is unsatisfactory and unconvincing and rather leaves the impression that she had intended to have unskillfully woven a yarn coming from her imagination. Even from the point of view of equity, plaintiff’s claim appears to be untenable.

On August 18, 1945, plaintiff sued defendants for the rescission of a contract of sale relating to lot No. 2151 of the Cebu cadastre. On November 14 a second amended complaint was filed wherein plaintiff alleged that in October, 1944, plaintiff sold to defendants lot No. 2151 of the plan of the burnt zone of the City of Cebu at the price of P200,000 in Japanese War notes and P5,000 in Philippine currency, defendants assuming the obligation of redeeming the property on their own account from a mortgage in favor of the Cebu Mutual Aid Association; that defendants only paid 2,000 Japanese pesos on October 18, 1944, 4,000 Japanese pesos on November 4, 1944, 20,000 Japanese pesos on March 29, 1945, and finally, 20,000 Japanese pesos on March 30, 1945, notwithstanding plaintiff’s refusal to accept the last two payments, as the Americans had already arrived in Cebu and no one would accept Japanese war notes; that plaintiff happened to learn that P15,000 had been consigned with the court in favor of the Cebu Mutual Aid Association, notwithstanding the fact that the mortgage debt and interest were much less than said amount; that the sum of 5,000 Filipino pesos was not mentioned in any document for fear of the Japanese; that defendants have received from the American army a monthly rent of P99.12 since June; that defendants, notwithstanding repeated entreaties of plaintiff, failed to pay her the amount of 5,000 Filipino pesos, and that the Japanese notes have depreciated and in March, 1945, they had no value at all and they were declared illegal by the President of the Philippines. As a remedy plaintiff prayed for the rescission of the contract of sale and for costs.

Defendants answered, alleging that Pio E. Valencia was not a party to the transaction alleged in the complaint; that on November 1, 1944, plaintiff received from defendant Emilia H. Rodriguez the sum of P30,000 as first payment of the total of 200,000 pesos in Japanese military notes as the price agreed upon for the land in question, and out of said amount plaintiff deposited with the clerk of court an amount sufficient to pay her obligation with the Cebu Mutual Aid Association and thereby secured from the court an order releasing lot No. 2151 from the mortgage in favor of Cebu Mutual Aid Association; that once the property was free and unencumbered and upon receipt from defendant Emilia H. Rodriguez of the balance of the agreed price of P200,000, plaintiff executed in favor of said defendant on November 18, 1945, a deed of sale which was registered with the register of deeds for the City of Cebu and transfer certificate of title No. 1963 was issued in favor of said defendant; that receipt Exhibit 1 signed by plaintiff and deed of sale Exhibit 2, exhibited by plaintiff, both of which are attached to the answer, contain all and the only terms, agreements and conditions between the parties and that defendants had not at any time consented verbally or in writing to pay any additional amount to plaintiff.

On March 13, 1946, the lower court rendered decision wherein, instead of ordering the rescission of the sale, it ordered defendant Emilia H. Rodriguez to pay plaintiff P5,000 and another amount of P133.33, and plaintiff to pay defendant the sum of P533.33. Defendant Emilia H. Rodriguez appealed.

The whole controversy in this case hinges on the truth or falsity of plaintiff’s allegation that appellant agreed to pay her the amount of 5,000 Filipino pesos in addition to the 200,000 Japanese military notes as agreed in the deed of sale of November 18, 1944, where "the sum of two hundred thousand pesos only (P200,000) in legal tender" is stated as consideration.

The question as to the truth or falsity of plaintiff’s allegation depends in turn upon plaintiff’s credibility, she alone having testified about the alleged additional amount not mentioned in any document.

Plaintiff testified that she is 66, single, resident of Cebu (1), and that she sold to Emilia Rodriguez a lot located at Plaridel Street, City of Cebu, at the agreed price of P200,000. (7).

"P. Cual era el convenio de ustedes sobre el precio?

R. P200,000.

"Abogado Alonso. En que forma se ha convenido aquel contrato, por escrito o de la palabra?

R. Por escrito.

"P. Y cual era el convenio de ustedes por la venta de aquel terreno, que precio?

R. P200,000 Japoneses mas P5,000 Americanos." (7).

Immediately her attorney asked her whether she was paid the price, suggesting, at the same time that the agreement was 200,000 Japanese pesos "mas P5,000 moneda Filipina," and she answered that the 200,000 Japanese pesos was paid. (8-9). As plaintiff continued to fail to mention the "P5,000 moneda Filipina," her attorney made another reminder by asking her about "5,000 Filipinos," reiterating it by saying "5,000 pesos Filipinos convenidos," and asking her if it was mentioned in some document. The agreement was verbal, "por temor a los Japoneses. Habia prohibicion, no podiamos hablar nada." But answering a question of the court, plaintiff alleged as reason for not asking any document the following: "Por mucha confianza, Señor Juez." (10). The agreement was entered into when plaintiff was living in her house in Tinago, corner of Martirez and Lopez Jaena streets, before it was burned on September 13. (11). But she made the first agreement on November 1, 1944, and she was living with the defendants in Dr. Valencia’s house. Defendants "me recogieron en el incendio de Lopez Jaena." (12). Defendant Emilia H. Rodriguez paid her the money.

Dr. Pio E. Valencia has knowledge of the sale but he took no part in the transaction. (At this juncture plaintiff’s counsel moved for the dismissal of the complaint against Dr. Pio E. Valencia and the Court granted the motion.) (13). Plaintiff remembers that 20,000 pesos were paid to her on March 28 and another 20,000 on March 29, because they were Wednesday and Thursday of the Holy Week. She learned of the arrival of the Americans in Cebu because she saw them, but "they did not tell me anything, and she did not know anything, I was living in the interior, I did not know anything but in the afternoon." She learned about the entrance of the Americans on the 27th. They arrived in the morning and she saw the Americans in the afternoon. Notwithstanding the fact that the Americans had already arrived and she saw them on the 27th, plaintiff accepted payments on the 28th and 29th, because Emilia told her that the Japanese money was still good and that the Filipino Bank answered for it. (14). What plaintiff sold was only a parcel of land of 472 square meters. She does not know its value before the war, because then nothing has been offered for it. "When my house was burned, they took me and brought me to Mandawe." (15). She is a close friend of Emilia Rodriguez. She received several payments of 10,000 and 20,000. She did not count the number of payments "I started to get money from Emilia since October 18, 1943." (16). "I started to obtain money from Emilia on October 18, 1943 in small amounts, for food expenses." Prior to September 12, 1944, Emilia Rodriguez had been making payments to her, as she asked her for food expenses. She had the agreement with Emilia Rodriguez about the purchase and sale of the land in question, "I believe in 43; I do not remember anymore; in 43, because in September of 44 was when it (my house) was burned." Reminded of the first payment of 30,000 Japanese military notes made on November 1, 1944, plaintiff answered: "I did not receive 30,000 pesos; 15,000 pesos, to pay Aboitiz." (17.) Reminded by the Court that in the receipt she signed the amount of 30,000 appears, she answered: "I signed 15,000 pesos. Maybe they were the ones who put that 30,000." She admits having written in her own handwriting the receipt for 30,000 pesos in Japanese money Exhibit 1-A dated November 1, 1944.

Exhibit 1-A stated as follows:jgc:chanrobles.com.ph

"Yo Amalia Rodriguez mayor de edad y vecina de Cebu, Cebu viendo mi terreno en la calle de Plaridel a Da. Emilia H. Rodriguez la cantidad de 200,000 dos cientos mil pesos Papel de Banco japones por lo cual juro de haber recibido dicha cantidad como primer pago 30,000 treinta mil pesos.

"Y por verdad firmo la presente en Mandaue 1.