FIRST DIVISION

[G.R. No. 10824. December 24, 1915.]

E. MICHAEL & CO. , plaintiff-appellant, vs . ADRIANO ENRIQUEZ ,

defendant-appellee.

Sepulveda, Pelaez & Espina for Appellant.

No appearance for appellee.

SYLLABUS

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.

DECISION

MORELAND , J : p

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.
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 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 arti cial 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 rst 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."
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 su cient
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 nd it; or who has make any other investigation which is su cient 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
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 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 a rmative 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 su ciently
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
identi cation and, when identi ed, 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 su cient 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.

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