[G.R. No. 10824. December 24, 1915. ]
E. MICHAEL & CO., Plaintiff-Appellant, v. ADRIANO ENRIQUEZ, Defendant-Appellee.
Sepulveda, Pelaez & Espina for Appellant.
No appearance for 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 questions as will result in injustice when the evidence which is intended to be brought out by the questions, 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 suggests the form of questions to and the method of examination of a witness where it appears that examining counsel, through inexperience or misunderstanding, 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.
D E C I S I O N
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., socieded en comandita, of which appellant claims to be the successor, by reason of an instrument, duly executed and delivered by said 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 from 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 of the documents were at times rather informal and in artificial and objections to such questions were properly sustained, at others the questions put for the purpose of proving those facts were well framed and answers 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 questions, 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 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 a recital of its contents in some authentic document, or by the recollection of a witness."cralaw virtua1aw library
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 acknowledge, 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 instrument 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 make 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 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 the 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 questions put by appellant’s counsel relative to the due executions 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 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 questions, or the property and business of E. Michael & Co., sociedad en comandita, to Appellant. Having obtained an affirmative answer to the questions 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 instruments 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 discussions 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.
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.