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 landsdescribed 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.