Prof. V. A.
Avena
Best Evidence Rule
AIR FRANCE vs. CARRASCOSO
18 SCRA 155
SANCHEZ; Sep 28, 1966
(athe)
NATURE: Review on certiorari
FACTS
Carrascoso, a civil engineer, was a member of a group
of 48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.
On March 28, 1958, the defendant, Air France, through
its authorized agent, Philippine Air Lines, Inc., issued to
plaintiff a 'first class' round trip airplane ticket from
Manila to Rome. From Manila to Bangkok, plaintiff
traveled in 'first class', but at Bangkok, the Manager of
the defendant airline forced plaintiff to vacate the 'first
class' seat that he was occupying because, in the words
of the witness Ernesto G. Cuento, there was a 'white
man', who, the Manager alleged, had a 'better right to
the seat. When asked to vacate his 'first class' seat, the
plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over
his dead body; a commotion ensued; plaintiff
reluctantly gave his 'first class' seat in the plane.
After transferring to the tourist class seat, one flight
attendant approached him and requested from him his
ticket and said that she will note of his transfer. He
refused because for him it is tantamount to accepting
his transfer. Later, he went to the pantry that was next
to him and the purser was there. He told him that he
recorded the incident in his notebook. He read it and
translated to him – because it was recorded in French.
– "First class passenger was forced to go to the tourist
class against his will, and that the captain refused to
intervene." Carrascoso, during trial, included this
incident in his testimony.
ISSUES
1. WON Carrascoso was entitled to the first class seat
he claims
2. WON the CA erred in finding that the purser
madean entry in his notebooks reading "First class
passenger was forced to go to the tourist class
against his will, and that the captain refused to
intervene" is predicated upon evidence which is
Evidence
incompetent, therefore not admissible (because the
defendant was saying that the best evidence in this
case is the entry and not the testimony)
HELD
1. YES. The testimony of the defendant’s witnesses that
the issuance of first class ticket was no guarantee that
the passenger would have a first class ride, but such
would depend upon the availability of first class seat
cannot hold water. Oral evidence cannot prevail over
written evidence, in this case, the first class tickets of
the plaintiff without any reservation whatever and even
marked with OK, meaning confirmed.
2. NO. The subject of inquiry is not the entry, but the
ouster incident. Testimony of the entry does not come
within the proscription of the best evidence rule. Such
testimony is admissible.
Besides, from a reading of the transcript just quoted,
when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be
felt. The excitement had not as yet died down.
Statements then, in this environment, are admissible as
part of the res gestae. For, they grow "out of the
nervous excitement and mental and physical condition
of the declarant". The utterance of the purser
regarding his entry in the notebook was spontaneous,
and related to the circumstances of the ouster incident.
Its trustworthiness has been guaranteed. It thus
escapes the operation of the hearsay rule. It forms part
of the res gestae.
Moreover, if it were really true that no such entry was
made, the deposition of the purser could have cleared
up the matter.
DISPOSITION: Decision of CA affirmed.
HERNAEZ v McGRATH
TUASON; July 9, 1952
G.R. No. L-4044
(jojo)
NATURE
- On action of ejectment and for damages
commenced in the CFI of Manila by Pedro C. Hernaez
and Asuncion de la Rama Vda. de Alunan, in her own
behalf and as an administratix of the estate of her
deceased husband, Rafael R. Alunan, against the
Philippine Alien Property Administration (PAPA).
A2010
FACTS
- Rafael Alunan and Pedro Hernaez formerly were
registered owners in equal share of a land, 8
contiguous parcels with a combined area of 4,533.34
sqm covered by TCT Nos. 46872-46880 and situated in
the corner of Cortabitarte and Dewey Boulevard,
Manila. 8 residential houses were built on these lots but
they were destroyed by war operations in the early part
of 1945.
In Feb. 1943, a deed of sale, on which Alunan's and
Hernaez names were signed as sellers and the
Hakodate Dock Co., Ltd., a Japanese commercial firm,
as buyer, in consideration of P170,000, was presented
for registration in the office of register of deeds, and on
March 3, TCT Nos. 66832-66839 in the name of the
purchaser were issued in lieu of the old CT Nos. 53930-
53938, which were totally cancelled. On the strength of
this registration,the lots and all improvements still
existing thereon were vested as property of an enemy
national by the PAPA, a US Government
instrumentality, In April 1947, under the authority of
the US Trading with the Enemy Act, as amended, the
Philippine Property Act of 1946, and Executive Order
No. 9818.
- The RP as the transferee of the property in litigation
came into the case as intervenor on the side of the
defendant. Dr. Nicanor Jacinto also filed a complaint in
intervention but in opposition to the defendant as well
as the plaintiffs. The questioned property has been
mortgaged to Jacinto before the outbreak of the war to
secure a promissory note for P160,000, and although
the mortgage had been paid and cancelled in 1943, Dr.
Jacinto alleged that he had accepted the payment and
agreed to the cancellation in fear of Japanese reprisal.
- The issue was complicated by the theft after
liberation from the office of the register of deeds, of the
deed of sale, the transfer certificates of title by virtue
thereof, and other papers pertaining to the last
registration. The plaitiff’s representation made
determined and repeated efforts to block the attempts
of appellants any oral evidence touching on the alleged
contents of the documents supposedly executed by
Alunan and Hernaez in favor of the Hakodate, which
efforts were futile.
- As maters stand, only one unsigned copy of the
aforesaid deed, which had been secured from the file of
the Hakodate home office in Hokaido, Japan, was
introduced. Hakodate's signed copy is said to have
12
 Prof. V. A. Avena
been lost or destroyed in the bombing of Tokyo in 1945
along with the company's office in that city. And the
copy or the copies which had been kept by the notary
public before whom the document was acknowledged
had also been burned with his other papers during the
fight for liberation of Manila. As a result, defendant's
proofs on the controverted execution of the lost deed
are only the entries thereof in the registrar's office,
collateral documents, and parol testimony, some direct,
some circumstantial, but none precise or unequivocal in
term.
- Hernaez was the lone witness on his behalf and for
his co-plaintiff. The gist of Hernaez' testimony is that if
any document was presented the register of deeds'
office purporting to have been executed by him and his
co-owner, that document was a forgery.
Hernaez in part declared: "We were forced by the
Japanese to vacate the houses. They told me they
needed the property and I had to cooperate,
collaborate with them and I had no other alternative
but to sell my property. They detained at the Port Area
until midnight; it was midnight when they sent me back
to my house but they retained the titles. I think there
were eight titles. They told me that I had to sign the
deed of sale. I had been expecting that they will appear
there to make me sign the deed of sale in my house or
in the office of the Navy at Legaspi Landing, but what
happened is that they did not appear in my house, and
afterwards I found out that Captain Tanabe (Watanabe,
Hakodate's manager) was sent back to Tokyo."
- The principal witness for the defendant on the
dispute sale were Satoru Watanabe, Napoleon Garcia
and Jose Ma. Recto.
- Watanabe: testifies that he was in the Philippines in
the early part of the war as acting manager of the
Manila Branch of the Hakodate Dock. Co., Ltd; that he
knew Hernaez and Alunan. He recalls the transaction
between the Hackodate Dock Co., Ltd., on the one hand
and Hernaez and Alunan on the other, concerning the
sale of the land and buildings located at the corner of
Cortabitarte and Cavite (Dewey) Boulevard. He says
that the deed of sale was prepared in Doctor Recto's
office but he was not present having gone to that office
only after he had been informed that the document was
ready; that after he had been assured that the
document was complete, he affixed his signature
thereto; that according to his memory he was asked to
sign the document after the vendors, Alunan and
Hernaez, had signed it; that as he left Manila for Japan
Evidence
shortly after he had signed the deed of sale, he does
not know what happened to the copy of said document
which was delivered to Hakodate Dock. Ltd., that after
he had returned to Tokyo, the document was forwarded
to the Tokyo office, at the beginning of the following
year; that the duplicate original and the unsigned
copies thereof were kept in the Tokyo office; that the
duplicate original was burned when the Tokyo office
was bombed by the United States Airforce in 1945, but
that a copy (made by the Hakodate Manila office) of the
duplicate original which was kept by the Manila Branch
office was not destroyed and he brought it along when
he came to the Philippines to testify; that he saw that
copy of the first time in the Hokaido office of the
Hakodate Dock Co. when he went there before coming
to the Philippines.
- Garcia, an assistant in the office of Atty. Recto,
declares that he was a notary public and recall that, as
such, he ratified a document in which Alunan and
Hernaez and the Hakodate Dock. Ltd., were the parties;
and all the notarial copies were lost or destroyed; that
he made at least five copies of which he retained two
and handed over the rest and the original to the
parties; that Hakodate at least received one copy. He
says he did not remember to whom he delivered the
original. On cross-examination by the attorney for Dr.
Jacinto, Garcia says that he does not know who
engaged his firm; he only knows that Recto requested
him to notarize the document. Nevertheless he recalls
that the vendors were Hernaez and Alunan and the
vendee the Hakodate Dock. Ltd, He says that the
documents were signed in his presence and that he
must have given Alunan or Hernaez a copy. He further
says he cannot exactly tell where the document was
ratified but that it must have been either in his office or
in the office of the parties whether he went with his
notarial equipment. He thinks he says, that he went to
the office of Secretary Alunan in the old legislative
building.
- Recto: testifies that during the Japanese occupation
his law office was on the 3rd floor of the Soriano
Building. He recalls a transaction between Alunan and
hernaez on the one hand and the Hakodate Dock. Ltd.,
on the other. He thinks that he drew a deed of sale and
that the document was signed in his office; that he was
in the same room. He was asked if he was one of the
witnesses to the document but the question was
objected to and the objection was sustained. He further
declares that he took charge of registering the deeds of
A2010
sale and that after the registration he succeeded in
getting the certificates of title in the name of the
vendee and delivered them to the latter. He says he did
not remember if his firm was the retained the counsel
for the Hakodate Dock Co., nor is he sure where the
transaction took place. He would not be able to identify
the document if only a copy thereof was shown to him.
He states that he does not remember if the transaction
was a sale; all he remembers is that it was a
transaction between Hernaez and Alunan and the
Hakodate Doc Ltd., and the papers were signed at his
office at the Soriano Building by alunan and Hernaez,
as afar as he can recall. He recalls another transaction
of Hakode in which the preparation of the document
was more or less entrusted to him by the Hakodate
Dock Co. He says that he was informed by Messrs.
Hernaez and Alunan regarding the transaction that
there had been an argument between them.
The trial Judge did not make express findings on
Watanabe's credibility, and referring to Garcia's and
Recto's testimony, noting that the same are beclouded
with the phrases "it could have been", "it must have
been signed, in his presence". Moreover, the judge
insinuated that Hakodate's signed copy existed at the
time of the trial and had been suppressed, and acting
on this belief, disregarded all parol evidence by which
the defendant had attempted to establish the
genuineness of the deal. Said the court: There is no
sufficient evidence on record to show the loss of all the
signed copies of the questioned document. Loss of the
original and the signed copies must be satisfactorily
established before secondary evidence can be
admitted. Specially when the signatures on the
document is claimed to have been forged, it becomes
absolutely necessary and indispensable the production
on original or a signed copy of the document. Thus, no
secondary evidence can be entertained to prove the
document of the lost document, especially if the
supposed document is contested to be falsified of
forged.
RTC ruled in favor of the plaintiffs and dismissed the
complaints in intervention.
ISSUE
WON the signatures of Alunan and Hernaez on the deed
of sale are authentic
HELD
YES
13
 Prof. V. A. Avena
- No valid ground can be perceived for the insinuation
that the defendant or the Hakodate Dock Co. concealed
any of the signed copies of the disputed deed. It is
highly inconceivable that the United States
Government or the Philippine Government
representatives would be capable or resorting to such
dishonorable and shyster tactics in order to win the
case and dispossess legitimate owners of their
property. Much less can it be imagined that those
representatives had a hand in the loss of pertinent
papers in the register of deeds' office. It would have
been nonsensical on their part to steal the very
documents on which they based their action in vesting
the property.
As for Hakodate Dock Company, his firm had no
interest in the result of the suit. It could not have
entertained any hope of getting the property under any
circumstances. Furthermore, Watanabe has no longer
connected with Hakodate when he testified at the trial.
Be that as it may, the court below was entirely
mistaken in holding that parol evidence of the
execution of the instrument was barred. The court
confounded the execution and the contents of the
document. It is the contents, which in this case are not
in dispute, which may not be proved by secondary
evidence when the instrument itself is accessible.
Proofs of the execution are not dependent on the
existence or non-existence of the document, and as a
matter of fact, such proofs of the contents: due
execution, besides the loss, has to be shown as
foundation for the introduction of secondary evidence
of the contents.
Section 46 ROC:
There can be no evidence of a writing other than the
writing itself the contents of which is the subject of
inquiry, except in the following cases:
xxx xxx xxx
Section 51 ROC:
When the original writing has been lost or destroyed
upon proof of its execution and loss or destruction, its
contents may be proved by a copy, or by a recital of its
contents in some authentic document, or by the
recollection of witnesses.
- Evidence of the execution of a document is, in the
last analysis, necessarily collateral or primary. It
generally consists of parol testimony or extrinsic
papers. Even when the document is actually produced,
its authenticity is not necessarily, if at all, determined
from its face or recital of its contents but by parol
Evidence
evidence. At the most, failure to produce the
document, when available to establish its execution
may affect the weight of the evidence presented out
not the admissibility of such evidence.
In spite of the defects which the trial court noted in
Garcia's and Recto's testimony, the same and
Watanabe's leave little or no room for doubt that
Alunan and her Hernaez did affix their signatures to the
deed of sale. Hernaez' testimony which the trial court
says "it finds no reason to doubt" actually has to many
serious flaws to justify the court's faith. The testimony
is highly improbable in many important respects and is
directly or indirectly contradicted by evidence more
trustworthy and by well-established facts. Without
going to minute detail, the following considerations
should suffice to illustrate the point.
- The evasive answers Hernaez in his cross-
examination cast serious reflection on the truth of the
protestations that the stolen document was forged.
Hernaez did not have to be shown the deed to be able
to tell that he had not signed it if that had been the
case. The point sought by the questions was very
specific and must have been uppermost in the witness’
mind. It was the thesis of his complaint and had been
the subject of a prolonged investigation before the suit
was filed. “Dates and years and figures" "difficult to
remember" had nothing to do with, and could not have
obscured the right answer to the simple question
whether Hernaez and Alunan had disposed of their
property which they were trying to recover. In fact
previously Hernaez and vehemently affirmed. "I never
signed a deed of sale to any body, much less to
Hakodate Dock Co."
- One other notable feature of Hernaez' testimony is
the absence therefrom of any reference to Alunan in
connection with the alleged seizure of their houses and
certificates of title. Although there is no proof on the
record relative to Alunan's official position at the time
other than that he had an office in the legislative
building, the court may take judicial notice of the fact
that Alunan was a member of the Executive
Commission and later cabinet minister in the Japanese
sponsored Government of the Philippines. The point is
that if what Hernaez says were correct, it does not
seem probable that Alunan would not have known the
occurrence, and knowing it, taken steps to recover the
seized titles or compensation for the property. It does
not seem likely that he would not have at least
complained to the Japanese higher authorities and
A2010
secured some information about what we became of
their certificates.
- Yet Hernaez would have the court believe, as we
gather from his testimony, that neither he nor his
partner learned of the whereabouts of their titles until
after the Japanese had been driven away from the
Philippines and that for the two years they allowed
themselves to be deprived of the use of their property
without protest. Let it be remembered that the property
had not been taken by the armed forces for war
purposes but by a private concern if attached to and
operating under the supervision of the Japanese Navy.
Contrary to Hernaez' assertions, Watanabe did not hold
any military rank or status, and the houses and lots
were used as quarters for the firm's civilian employees
and acquired in the firm's name with its own money.
The charge suggested by the line of plaintiff's evidence
that the Hakodate Dock Co. resorted to frauds and
coercion so as not to pay for the plaintiffs' land and
houses is discredited by the fact that it settled the
mortgage, paying an amount which was only P10,000
short of the purchase price. This payment bears
witness to Hakodate's good faith and willingness to
spend for what it got. At the same time, and this is
more important to the immediate issue, it is mute
testimony to the due execution of the sale by Alunan
and Hernaez; for it is not logical to suppose that the
Hakodate would have parted with a huge amount of
cash, huge at the time, if the owners had not executed
a valid deed of conveyance.
Another idea that suggests itself is that the officers of
the Hakodate, of the Hahodate, if they had a mind to
commit frauds, would not have been chosen Doctor
Jacinto for the victim of its felony in preference to a
senator-elect, which Mr. Hernaez was, and a member of
the Cabinet. To forge a deed of cancellation held by a
private citizen who wielded no official influence would
have been undoubtedly the easier and the risks of
failure, not to say punishment, the lesser.
- The premise of his ratiocination is wrong in that
Hernaez testified that he and no the Hakodate Dock Co.
paid off the mortgage. However, the clear weight of the
evidence both as to quality and the number of
witnesses is against the plaintiffs.
- Against the plaintiffs' evidence there is the testimony
of Watanabe and Jacinto who said the payment was
affected by the former, and of Recto and Garcia who
said that the cancellation was arranged and perfected
14
 Prof. V. A. Avena
in their law office at the instance of the Hakodate
representatives.
- In contract, Hernaez said he did "not know who
handled the cancellation," a matter which seemed too
important not to be remembered, contenting himself
with the statement that "The thing is that when he paid
him (Jacinto) he gave us the release." And as to the
place of cancellation, he said that it was somewhere on
the Escolta, in the office of the law firm of Duran, Lim &
Bausa, when, it is conclusively established, Attuy. Lim,
who was Jacinto's attorney, and whom Hernaez
apparently had in mind, separated from that firm as
early as the beginning of the Japanese occupation in
1942, and, as a matter of fact, the cancellation was
executed, as above, seen, in the Recto Law Office and
not in the law office of Duran, Lim & Bausa. Note that
the attesting witnesses to the cancellation were
Napoleon Garcia and Jose Ma. Recto and the document
was acknowledge before Garcia was notary public.
- The fact that the deed of cancellation was made in
the name of Alunan and Hernaez cannot be any means
be taken as evidence of plaintiff's theory. The payment
was in reality made in their name although the money
came was received by the payee from Watanabe. For
the purpose of registration, the deed of cancellation
had to be deframed the way it was drawn.
- The overwhelming preponderance of the evidence
likewise discredits Hernaez' declaration that his and
Alunan's certificates of title were in his possession.
Jacinto said he had them, and it could not have been
otherwise. It is the invariable and sensible practice of
mortgagees to keep the title to the property mortgaged
as a necessary measure of protection. In the testimony
before the court (he had lenghtly testified before the
claim committee of the PAPA Hernaez admitted that
Doctor Jacinto did not depart from this practice. In
answer to the court's question whether he turned over
to Doctor Jacinto the said certificates when he executed
the mortgage, he answered in the affirmative. How
then could Hernaez have those certificates when he
was allegedly carried to the Legaspi Landing where, he
said, they were taken away from him?
The deed of sale and the deed of cancellation were
executed on the same date, February 20, and the
genuineness of the latter deed is admitted. This being
so, Hernaez could not have had the certificates of title
and these could not have been taken away from him
before that date. If it be asserted that the certificates
might have been handed over to the Japanese on the
Evidence
same date the mortgage was cancelled and the
cancellation was registered, the assertion would
contradict Hernaez' testimony from which the clear
inference is that he had the titles in his home for days
or weeks before the Legaspi Landing incident. Besides,
Watanabe and his attorneys and notary could not by
any possibility have drawn or registered the deed of
sale on the same date the certificates were returned to
Hernaez to Doctor Jacinto.
- One of the arguments advanced to drive home the
point that the questioned sale was fake is that, it is
said, Alunan and Hernaez did not have any need to sell
this property. Moreover, it is alleged purchase price
was far below its actual value.
- Jacinto testified that having heard that the property in
question was being sold to the Japanese, he
immediately gave instructions to his then attorney,
Manuel Lim, to see Alunan and Hernaez and offer in his
behalf to buy it. And Atty. Lim, who was SolGen when
he testified corroborated his former client, stating that
about the end of 1942 or the early part of 1943, he
requested Alunan to let Doctor Jacinto buy the said
property, and proposed easy terms. He said that he
called on Alunan twice or three times in the latter's
office in the Legislative Building; that in the first visit
Alunan said that he would consult with his partner,
Senator Hernaez, and in the second, that he and his
partner were still undecided, but remarked that he had
received an offer from a Japanese firm and that he
(Alunan) and Hernaez would prefer to make the sale of
the Japanese. We have no reason to suspect the
veracity at these witnesses.
That Alunan and Hernaez were not averse to selling the
property in question may be inferred from the plaintiffs'
own evidence. Hernaez testified that he had sold to a
Chinese in 1944 the land on Dewey Boulevard where
the Riviera is now located, for P360,000 or P375,000
and a parcel, location not revealed, to Toyo Menka
Kaisha for P40,000 "nearly the same time, March
1943," a lot by which the way, according to Hernaez he
was also claiming from the PAPA. He also disclosed that
he had "sold many jewelries, watches and other
things," which goes to show that they were not
oversupplied with cash. Of equal significance is the
statement indicating that Hernaez and Alunan were
engaged in real estate business. Hernaez stated, "We
used to have here some properties that we sold on ten
years installment before the war and after the war."
A2010
- In the matter of the value of the houses and lots
registered by the Hakodate Dock Co., the trial court
believed that the price stated in the deed was highly
inadequate and regarded this alleged inadequate as
supporting the contention that the sale was forged.
The court seems to have overlooked the fact that the
property sold to Hakodate Dock Co., was only eight
parcels containing a total area of 4,533,34 square
meters, whereas the property which the plaintiff had
bought from Chuan & Sons for P185,000 and of which
the property in questioned formed a part, measured
8,027.72 square meters. So that by selling the above
portion of P170,000, they were able to recoup nearly all
their investment, without counting the rents they had
theretofore realized on the houses, and keep nearly
one-half of their original acquisition as a clear profit.
That was not a bad bargain. It is a matter of common
knowledge that in February 1943 Japanese war notes
were still about at par with the Commonwealth peso.
The sale of the plaintiff's other land in Dewey Boulevard
for a much higher price in proportion to its size took
place in 1944, or in the latter part of 1943 at the
earliest, when the Japanese war notes had been
shipping down fast. At any rate, the proceeds of the
sale were more than enough to liquidate their
mortgage debt, the payment of which the purchaser
took charge of attending to. As Hernaez said, "the thing
is that when we paid him (Jacinto) he gave us the
release."
- For another thing, it is a mistake to take the alleged
inadequacy of the price stated in the deed of evidence
of forgery, for figures are easy to fabricate and a forger
would endeavor to fix an amount in accord with the
prevailing rates of real estate value precisely to
forestall such suspicion as is put forward in this case.
- The appealed decision says "another issue raised by
the plaintiffs is the illegality of the alleged acquisition
by the Hakodate Dock Co. Ltd., of the property under
litigation, assuming that a contract was duly executed
by Messrs. Alunan and Hernaez in favor of the said
company," And citing Krivenco vs. Register of Deeds,
the court concluded that the sale would be null and
void any way.
- As the appellants have noted, nowhere in the
pleadings did the plaintiffs impeach the validity of the
sale to Hakodate Dock Co., on constitutional grounds.
And even if they had, the present case would not be
controlled by the doctrine laid down in the Krivenko
case. The Philippine Constitution was not in force
15
 Prof. V. A. Avena
during the Japanese occupation of the Philippines. The
constitution was inoperative at least with reference to
Japanese citizens. Military Ordinance No. 2,
promulgated on March 14, 1942, expressly excluded
"Japanese subjects from the operation of prohibition
and limitations on civil rights, benefits and privileges,
which by reason, of their nationality are denied them
by laws, statutes, administrative orders or regulations
of the Philippines." There is no doubt about the rights
under the international law of the belligerent occupants
to issue this decree.
- The court would also invalidate the sale on the theory
"that the Hakodate Dock Co. Ltd., a purely Japanese
concern, was never registered as such in the
Philippines nor was it authorized to transact business in
accordance with existing Philippine Corporation Law."
This question, like the just discussed, has not been
raised in the pleadings. What is more, we know of no
law or provision of the Corporation Law which prohibits
a business concern not authorized to transact business
from buying or owning real property. As to counsel's
observation that "there was no proof that Satoru
Watanabe, who was then merely an acting Manila
manager of the company, was duly authorized to
represent said company," the defect if there was a
defect was one which the only principal or the party for
whom Watanabe purported to act could use to rescind
the sale.
- The probabilities of forgery are very remote and the
direct evidence for the defendant has abundantly and
convincingly established that the property was sold by
its former owners for valuable consideration. The loss
of the pertinent records in the office of the register of
deeds cannot be availed of to bolster the plaintiffs' case
or weaken the defense. If the loss is to produce any
effect, the effect should be reverse, considering all
circumstances surrounding the theft.
Doctor Jacinto's case: Doctor Jacinto testified: He was
paid the amount of the mortgage by a Japanese, who
said that he represented the Hakodate Dock Co., at the
beginning of 1943, and deposited the check, signed by
a Japanese, in the Philippine Bank of Commerce. He
executed a release of the mortgage because he was
told by the Japanese, accompanied by a Filipino from
the law firm of Mr. Recto that the document of
cancellation was already prepared. He was informed
that they had purchased the property for the Hakodate
Dock Co. He was reluctant to sign the deed of
cancellation because, in the first place, the amount did
Evidence
not cover the whole balance, and in the second place, it
was not the money which he had loaned. When they
noticed his reluctance they told him that he could be
grateful because they could have taken the property
without anything for it.
The court can sympathize with the mortgagee and
believe that at heart he was opposed to the payment of
his credit in Japanese money and would not have
rejected or protested against the payment if it had
been tendered by the debtor directly. Under the
applicable law and uniform decisions of this Court,
however, the payment was enforceable irrespective of
the attitude of the creditor. The debtor or his successor-
in-interest had the right to pay the mortgage in
Japanese war notes, which were the authorized
currency in circulation, not to say the only currency
available. In other words, the payment would have
released the mortgage even if it had been tendered by
the mortgagor personally and had been turned down by
the mortgagee. That was the unfortunate situation into
which thousands of prewar creditors were thrust by the
war, most of them being forced to accept Japanese
military notes when these were little better than
useless.
- The disparity in value, if any, between Japanese war
notes and the Philippine peso in February 1943 was not
great, however. According to the Ballantyne conversion
table, the exchange ratio between the two currencies in
February 1943 was P1 to P1.10. It is to be kept in mind
that the scale did not pretend to be exact. The ratio
could have been still even. The belief is, perhaps,
confirmed by the price of the absolute sale which was
only P10,000 more than the mortgage debt.
In any event, the mortgagee, whatever his feelings, did
accept the payment, deposit the cash in the bank in
current account, and could have made use of it. At the
then prevailing value of Japanese war notes, the
amount could have been invested profitably in other
real estate or business transactions. Under the
circumstances, the principle of estoppel is not to be
ruled out.
DISPOSITION:
Upon the foregoing considerations, the judgment as to
intervenor Dr. Jacinto is affirmed and as to the
defendant reversed the defendant being hereby
absolved, with costs of both instances against the
plaintiffs and appellees.
A2010
ARCEO v CA
G.R. No. 142641
CORONA, July 17, 2006
(cha)
NATURE
Petition for review on certiorari
FACTS
-Arceo obtained 2 consecutive loans from Cenizal:
P100k then P50k. He then issued a BPI Check postdated
August 4, 1991 for P150k at Cenizal’s house located at
70 Panay Ave., QC.
-August 4, 1991, Cenizal did not deposit the check
immediately because Arceo promised 7 times that he
would replace the check with cash. But since Arceo
failed to replace the check, Cenizal brought the check
to the bank for encashment 120 days after the due
date. The checked bounced because of insufficient
funds.
-Cenizal then went to Arceo’s house to inform him of
the dishonor of the check. However, Arceo already left
the place. Arceo was given a letter giving him 3 days
from receipt thereof to pay the amount of the check but
Arceo still failed to pay.
-Cenizal then executed an affidavit and submitted
documents in support of his complaint for estafa and
violation of BP 221.
-However, Cenizal lost the check in question and the
return slip after a fire occurred near his residence on
1992. He executed an Affidavit of Loss instead.
-TC: GUILTY
1 SECTION 1. Checks without sufficient funds. ? Any person who makes or draws and issues any
check to apply on account or for value, knowing at the time of issue that he does not have
sufficient funds in or credit with the drawee bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not
less than thirty days but not more than one (1) year or by a fine of not less than but not more
than double the amount of the check which fine shall in no case exceed Two Hundred Thousand
Pesos, or both such fine and imprisonment at the discretion of the court.
The same penalty shall be imposed upon any person who, having sufficient funds in or credit
with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the check if presented within a period of
ninety (90) days from the date appearing thereon, for which reason it is dishonored by the
drawee bank.
Where the check is drawn by a corporation, company or entity, the person or persons who
actually signed the check in behalf of such drawer shall be liable under this Act.
16
 Prof. V. A. Avena
-CA:GUILTY, MFR denied
-Petitioner’s contention: TC and CA erred in convicting
him because: (1) prosecution failed to present the
dishonored check during trial; (2) the check was
presented beyond the 90-day period provided under
the law; (3) notice requirement was not complied with,
given only 3 days and not 5 banking days to pay, as
required by law; (4) payment of obligation
ISSUE
1. WON the CA erred in convicting him even though the
check was presented beyond the 90-day period
2. WON the prosecution is required to present the
check which was dishonored
3. WON all the elements of the offense are present
4. WON Arceo was deprived of the 5-day period
required by law and if ever, did he pay
HELD
1. NO.
Ratio. The 90-day period provided in the law is not an
element of the offense. Neither does it discharge
petitioner from his duty to maintain sufficient funds in
the account within a reasonable time from the date
indicated in the check. According to current banking
practice, the reasonable period within which to present
a check to the drawee bank is six months. Thereafter,
the check becomes stale and the drawer is discharged
from liability thereon to the extent of the loss caused
by the delay. [Wong vs. CA]
Reasoning. Cenizal’s presentment of the check to the
drawee bank 120 days (four months) after its issue was
still within the allowable period. Petitioner was freed
neither from the obligation to keep sufficient funds in
his account nor from liability resulting from the
dishonor of the check.
2. NO
Ratio. The rule applies only where the content of the
document is the subject of the inquiry. Where the issue
is the execution or existence of the document or the
circumstances surrounding its execution, the best
evidence rule does not apply and testimonial evidence
is admissible. The gravamen of the offense is the act of
drawing and issuing a worthless check. Hence, the
subject of the inquiry is the fact of issuance or
execution of the check, not its content.
Reasoning. The due execution and existence of the
check were sufficiently established. Cenizal testified
Evidence
that he presented the originals of the check, the return
slip and other pertinent documents before the Office of
the City Prosecutor of Quezon City when he executed
his complaint-affidavit during the preliminary
investigation. The City Prosecutor found a prima facie
case against petitioner for violation of BP 22 and filed
the corresponding information based on the
documents. Although the check and the return slip
were among the documents lost by Cenizal in a fire that
occurred near his residence on September 16, 1992, he
was nevertheless able to adequately establish the due
execution, existence and loss of the check and the
return slip in an affidavit of loss as well as in his
testimony during the trial of the case. Moreover,
petitioner himself admited that he issued the check. He
never denied that the check was presented for
payment to the drawee bank and was dishonored for
having been drawn against insufficient funds.
3. YES. Both the trial and appellate courts found that
petitioner issued the postdated check in the amount of
P150k. Check was deposited but was dishonored for
insufficient funds. Petitioner knew he did not have
sufficient funds, he even requested Cenizal not to
encash it and promised that he would replace it with
cash instead. Nevertheless, he still did not replace the
checks with cash.
4. NO and NO. Cenizal’s counsel informed Arceo in
writing of the check’s dishonor and demanded payment
of the value of the check. Petitioner still failed to pay
the amount of the check even after receipt of demand
for payment, even after the period of 5 banking days
have passed. On payment, he presented no proof to
support it. If he indeed paid, he should have redeemed
the check from Cenizal as in the ordinary course of
business but instead, Cenizal still possessed the check.
Disposition. WHEREFORE, the petition is hereby
DENIED. The April 28, 1999 decision and March 27,
2000 resolution of the Court of Appeals in CA-G.R. CR
No. 19601 are AFFIRMED. Costs against petitioner.
US V GREGORIO & BALISTOY
G.R. No. L-5791
TORRES; December 17, 1910
(rach)
A2010
NATURE
Appeals were interposed by the defendants Bernardo
Gregorio and Eustaquio Balistoy from the judgment
rendered in the two causes prosecuted which were
consolidated
FACTS
- This case concerns the falsity of a document
alleged to have been written on a date prior to
the one when it actually was prepared, which
instrument simulates the sale of a parcel of land by its
owner to a third party, with the intent to defraud the
creditor, who, through proper judicial process, solicited
and obtained the attachment and sale of the said
property in order, with the proceeds of such sale, to
recover the amount which the owner of the land owed
him.
- Prior case: In a suit instituted by Pedro Salazar, as
a creditor, against Eustaquio Balistoy, in the justice
of the peace court of Libog, for the payment of a
certain sum of money, judgment was rendered wherein
the debtor was sentenced to pay to the plaintiff
P275.92.
- For the execution of the said judgment, two rural
properties belonging to the debtor were attached. May
27, 1908 was set as the date for the sale and
adjudication of the said attached properties. A few days
before such date, Bernardo Gregorio requested the
deputy sheriff to exclude the said realty from the
attachment, alleging that he was the owner of the land
situated in Tambogon, one of the properties levied
upon, for the reason that he had acquired it by
purchase from the judgment debtor, Balistoy, in
1905, prior to the filing of the complaint.
- By reason of this claim and petition, the judgment
creditor, Salazar, had to give a bond, in view of which
the sheriff proceeded with the sale of the said property,
and of another, also attached for the sum of P300, and
both were adjudicated to the judgment creditor.
- In order that the claim of intervention presented to
the sheriff might prosper, Bernardo Gregorio
attached thereto the document Exhibit D, at the
end of which and among other particulars appears the
memorandum dated in Libog as of February 22, 1905,
and signed by Eustaquio Balistoy, Lorenzo Gregorio,
and Cirilo Valla, and in which Balistoy states that he
bought the land referred to in the said document from
Luis Balistoy and sold it to Bernardo Gregorio for P300,
wherefore he signed as such vendor.
17
 Prof. V. A. Avena
- Current charge: Balistoy, with intent to injure his
creditor, Pedro Salazar, and for the purpose of
avoiding the attachment and sale of one of the
properties belonging to him, to secure the payment
of the judgment obtained by his creditor in the
aforementioned suit, did, with disregard of the truth in
the narration of the facts, execute or write the said
memorandum whereby, on February 25, 1905, he
made or simulated a conveyance of one of the attached
properties in favor of the said Bernardo Gregorio,
according to the aforesaid copy, when in fact the
said memorandum was written in April, 1908.
- The court pronounced both of them guilty of
falsification of a private document. Defendants
appealed.
ISSUE
WON the defendants were guilty of the crime of
falsification of a private document
HELD
NO
Ratio Through the lack of the original document
containing the memorandum alleged to be false, it is
improper to hold, with only a copy of the said original in
view, that the crime prosecuted was committed; and
although, judging from the testimony of the witnesses
who were examined in the two consolidated causes,
there is reason to entertain much doubt as to the
defendants' innocence, yet, withal, this case does not
furnish decisive and conclusive proof of their
respective guilt as coprincipals of the crime
charged. Defendants in a criminal cause are always
presumed to be innocent until their guilt be fully
proven, and, in case of reasonable doubt and when
their guilt is not satisfactorily shown, they are entitled
to a judgment of acquittal.
- In criminal proceedings for the falsification of a
document, it is indispensable that the judges and
courts have before them the document alleged to
have been simulated, counterfeited, or falsified,
in order that they may find, pursuant to the evidence
produced in the cause, whether or not the crime of
falsification was committed, and also, at the same time,
to enable them to determine the degree of each
defendant's liability in the falsification under
prosecution.
Reasoning In the charge filed in this case against the
vendor and the vendee of the land in question, it is
Evidence
stated that these parties, the defendants, simulated the
said memorandum of sale or conveyance of the land
with the intent to injure the creditor, Pedro Salazar.
- But as the original document, setting forth the
said memorandum, was not presented, but
merely a copy thereof, and furthermore, as it
could not be ascertained who had the original of
the document containing the memorandum in
question, nor the exact date when the latter was
written.
- The said memorandum, presumed to be simulated
and false, was not literally compared by the sheriff who
testified that he had seen its original for but a few
moments, nor by any officer authorized by law to
certify to documents and proceedings such as are
recorded in notarial instruments, nor even by two
witnesses who might afterwards have been able to
testify before the court that the copy exhibited was in
exact agreement with its original.
- Therefore, on account of these deficiencies,
doubt arises as to whether the original of the
document, Exhibit D, really existed at all, and
whether the memorandum at the foot of the said
exhibit is an exact copy of that alleged to have been
written at the end of the said original document.
Disposition For the foregoing reasons, it is proper, in
our opinion, with a reversal of the judgment appealed
from, to acquit, and we hereby do acquit Eustaquio
Balistoy and Bernardo Gregorio.
PROVINCIAL FISCAL OF PAMPANGA V REYES
G.R. No. 35366
VILLAMOR; August 5, 1931
(apple)
NATURE
Petition for the issuance of a writ of mandamus
FACTS
-The provincial fiscal of Pampanga filed two
informations for libel against Andres Guevarra, alleging
that he caused the publication in Ing Magumasid
( weekly paper in Pampango dialect), a squib in verse,
intended to impeach the honesty, integrity, and
reputation of Clemente Dayrit and Mariano
Nepomuceno.
-The fiscal attempted to present as evidence Exhibits A,
B, C, and D, which are copies of the Ing Magumasid
A2010
containing the libelous article with the innuendo,
another article in the vernacular published in the same
weekly, and its translation into Spanish.
-Counsel for the defendant objected to this evidence,
which objection was sustained by the court.
Petitioner's Contention
-The exhibits in question are the best evidence of the
libel, the subject matter of the information, and should
therefore be admitted
Respondent's Argument
Inasmuch as the libelous articles were not quoted in the
information (what was quoted was not the actual article
but its Spanish translation), said evidence cannot be
admitted without amending the information.
ISSUE
1.WON an information charging a libel published in an
unofficial language, without including a copy of the
libelous article, but only a translation into Spanish is
valid
2. WON a writ of mandamus to compel the
respondent judge to admit Exhibits A, B, C, and D
should issue
HELD
1. Yes
Gen rule: The complaint or information for libel must
set out the particular defamatory words as published,
and a statement of their substance and effect is
insufficient
Exception: If the libelous article had been published in
an unofficial language, as in this case, it is sufficient to
insert a Spanish or English translation in the
information.
2.Yes.
-The general rules regarding the admissibility of
evidence are applicable to cases of libel or slander. The
evidence must be relevant, and not hearsay.
-This being so, the rule of procedure which
requires the production of the best evidence, is
applicable to the present case.
-Certainly, the copies of the weekly where the
libelous article was published, and its
translation, constitute the best evidence of the
libel charged. The newspaper itself is the best
evidence of an article published in it.
-The respondent judge undoubtedly has discretion to
admit or reject the evidence offered by the fiscal; but in
the instant case his refusal to admit such evidence
18
 Prof. V. A. Avena
amounts to an abuse of that discretion, which may be
controlled by this court by means of mandamus
proceedings.
Disposition
Petition granted
PEOPLE v. TANDOY
GR 80505;
December 4, 1990; Cruz
(Ina)
FACTS
An information against Tandoy was filed with the
RTC. It charged him with selling 10 pieces of dried
marijuana, a prohibited drug, for P20. He was
convicted. He appealed.
Prosecution’s evidence:
Police officers conducted a buy-bust operation
along Solchuaga St., Bgy Singkamas, Makati. One
officer posed as a buyer and waited for a pusher near a
store. Tandoy approached him and right away asked
him if wanted to iskor. The officer paid a P10 bill and
two P5 bills (marked money) for two rolls of marijuana.
Then the other officers arrested Tandoy. They made a
body search and found 8 more rolls. They brought him
to the police station to be investigated. Tandoy
remained silent after being read his rights. This was
narrated by 3 police officers.
Microscopic, chemical and chromatographic
examination of the confiscated marijuana was positive
for marijuana. The marijuana was offered as exhibit.
Defendant’s story:
He was playing “cara y cruz” with 15 other people
along Solchuaga St., when somebody suddenly said
that the police were making arrests. The people
grabbed the bet money and scattered. He was arrested
and the money they found on him was from the game.
He and a fellow player were taken to the police station
and mauled to give up the other pushers.
The trial court believed the police officers’ story
over the defendant’s. Applying the presumption that
they had performed their duties in a regular manner, it
rejected Tandoy's uncorroborated allegation that he
had been manhandled and framed.
Evidence
ISSUE
WON the admission of only the Xerox copy of the P10
bill was erroneous, based on best evidence rule.
RULING
NO.
Apparently, appellant erroneously thinks that said
marked money is an ordinary document falling under
Sec. 2, Rule 130 of the Revised Rules of Court which
excludes the introduction of secondary evidence except
in the five (5) instances mentioned therein.
The best evidence rule applies only when the
contents of the document are the subject of inquiry.
Where the issue is only as to whether or not such
document was actually executed, or exists, or in the
circumstances relevant to or surrounding its execution,
the best evidence rule does not apply and testimonial
evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4
Martin, op. cit., p. 78.)
Since the aforesaid marked money was presented
by the prosecution solely for the purpose of
establishing its existence and not its contents, other
substitutionary evidence, like a xerox copy thereof, is
therefore admissible without the need of accounting for
the original.
Moreover, the presentation at the trial of the "buy-
bust money" was not indispensable to the conviction of
the accused-appellant because the sale of the
marijuana had been adequately proved by the
testimony of the police officers. So long as the
marijuana actually sold by the accused-appellant had
been submitted as an exhibit, the failure to produce the
marked money itself would not constitute a fatal
omission.
DE VERA v. AGUILAR
GR 83377; February 9, 1993; Campos, Jr.
(Chrislao)
FACTS
-Petitioners Basilio, Luis, Felipe, Eustaquia and Maria,
all surnamed de Vera and respondent Leona, married to
respondent Mariano Aguilar, are the children and heirs
of the late Marcosa Bernabe who died on May 10, 1960.
A2010
-In her lifetime, Marcosa Bernabe owned the disputed
parcel of land
-The disputed property was mortgaged by petitioners
Basilio and Felipe de Vera to a certain Atty. Leonardo
Bordador. When the mortgage had matured, the
respondents redeemed the property from Atty.
Leonardo Bordador and in turn Marcosa Bernabe sold
the same to them as evidenced by a deed of absolute
sale dated February 11, 1956.
-On February 13, 1956, the respondents registered the
deed with the Registry of Deeds of Bulacan resulting in
the cancellation of the tax declaration in the name of
Marcosa Bernabe and the issuance of another in the
name of the Aguilars.
-On July 20, 1977, respondent Mariano Aguilar was
issued a free patent to the land on the basis of which
Original Certificate of Title was issued in his name.
-The petitioners wrote to the respondents claiming that
as children of Marcosa Bernabe, they were co-owners of
the property and demanded partition thereof on threats
that the respondents would be charged with perjury
and/or falsification. The petitioners also claimed that
the respondents had resold the property to Marcosa
Bernabe on April 28, 1959.
-On September 27, 1980, the respondents wrote in
reply to the petitioners that they were the sole owners
of the disputed parcel of land and denied that the land
was resold to Marcosa Bernabe.
-True to petitioners' threat, they filed a falsification
case against the respondents. However, on March 31,
1981, Assistant Provincial Fiscal Arsenio N. Mercado of
Bulacan recommended dismissal of the charge of
falsification of public document against the
respondents for lack of a prima facie case.
-On March 26, 1981, petitioners filed a suit for
reconveyance of the lot.
19
 Prof. V. A. Avena
-TC ruled in petitioners’ favor. CA reversed. It found
that the loss or destruction of the original deed of sale
has not been duly proven by the petitioners. Hence,
secondary evidence, i.e., presentation of the xeroxed
copy of the alleged deed of sale is inadmissible
ISSUE
-WON petitioners have satisfactorily proven the loss of
the original deed of sale so as to allow the presentation
of the xeroxed copy of the same.
RULING
-NO. Secondary evidence is admissible when the
original documents were actually lost or destroyed. But
prior to the introduction of such secondary evidence,
the proponent must establish the former existence of
the instrument. The correct order of proof is as follows:
Existence; execution; loss; contents although this order
may be changed if necessary in the discretion of the
court. The sufficiency of proof offered as a predicate for
the admission of an alleged lost deed lies within the
judicial discretion of the trial court under all the
circumstances of the particular case.
-A reading of the decision of the trial court shows that it
merely ruled on the existence and due execution of the
alleged deed of sale dated April 28, 1959. It failed to
look into the facts and circumstances surrounding the
loss or destruction of the original copies of the alleged
deed of sale.
-In the case at bar, the existence of an alleged sale of a
parcel of land was proved by the presentation of a
xeroxed copy of the alleged deed of absolute sale.
-In establishing the execution of a document the same
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 or who, after its execution, saw it
and recognized the signatures; or by a person to whom
the parties to the instrument had previously confessed
the execution thereof.
Evidence
-SC agrees with the TC's findings that petitioners have
sufficiently established the due execution of the alleged
deed of sale through the testimony of the notary public.
-After the due execution of the document has been
established, it must next be proved that said document
has been lost or destroyed. 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 any one who had 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 made any other
investigation which is sufficient to satisfy the court that
the instrument is indeed lost.
-However, all duplicates or counterparts must be
accounted for before using copies. For, since all the
duplicates or multiplicates are parts of the writing itself
to be proved, no excuse for non-production of the
writing itself can be regarded as established until it
appears that all of its parts are unavailable (i.e. lost,
retained by the opponent or by a third person or the
like)
-In the case at bar, Atty. Emiliano Ibasco, Jr., notary
public who notarized the document testified that the
alleged deed of sale has about four or five original
copies. Hence, all originals must be accounted for
before secondary evidence can be given of any
one. This petitioners failed to do. Records show
that petitioners merely accounted for three out
of four or five original copies.
CA affirmed
RODELAS V ARANZA ET AL.
RELOVA; DECEMBER 7, 1982
(jaja)
FACTS
On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance
A2010
of letters testamentary in her favor. The petition was
opposed by the appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla Frias and
Ephraim Bonilla. The appellees likewise moved for the
consolidation of the case with another case. Their
motion was granted by the court in an order dated April
4, 1977. On November 13, 1978, following the
consolidation of the cases, the appellees moved again
to dismiss the petition for the probate of the will. They
argued that: (1) The alleged holographic was not a last
will but merely an instruction as to the management
and improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and (2) Lost or
destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss
was denied by the court in its order of February 23,
1979. The appellees then filed a motion for
reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the appellant in
turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the
petition for the probate of the will of Ricardo B. Bonilla.
The court said held that in view of the lapse of more
than 14 years from the time of the execution of the will
to the death of the decedent, the fact that the original
of the will could not be located shows that the decedent
had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied.
Hence, an appeal to the Court of Appeals in which it is
contended that the dismissal of appellant's petition is
contrary to law and well-settled jurisprudence. On July
7, 1980, appellees moved to forward the case to this
Court on the ground that the appeal does not involve a
question of fact.
ISSUE
WON a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy
HELD
YES. Pursuant to Article 811 of the Civil Code, probate
of holographic wills is the allowance of the will by the
court after its due execution has been proved. The
probate may be uncontested or not. If uncontested, at
20
 Prof. V. A. Avena
least one Identifying witness is required and, if no
witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are
required. However, if the holographic will has been lost
or destroyed and no other copy is available, the will
cannot be probated because the best and only
evidence is the handwriting of the testator in said will.
It is necessary that there be a comparison between
sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy
of the holographic will may be allowed because
comparison can be made with the standard writings of
the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of
a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards
the document itself as material proof of authenticity."
But, in Footnote 8 of said decision, it says that "Perhaps
it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by
other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
. the merits to be rendered upon the termination of the
NAPOCOR v. HON. RAMON G. CODILLA, JR.
[BANGPAI SHIPPING COMPANY, & WALLEM
SHIPPING, INC.]
G.R. No. 170491
CHICO-NAZARIO; April 4, 2007
(edel)
Nature: Certiorari under Rule 45
Facts:
-M/V Dibena Win, a vessel of foreign registry owned and
operated by Bangpai allegedly bumped and damaged
NAPOCOR’s Power Barge 209 which was then moored
at the Cebu International Port.
-NAPOCOR then filed before the Cebu RTC a complaint
for damages against Bangpai for the alleged damages
caused on the power barges.
Evidence
-NAPOCOR filed an Amended Complaint dated 8 July
1996 impleading Wallem as additional defendant,
contending that the latter is a ship agent of Bangpai.
-Bangpai & Wallem filed their respective Motions to
Dismiss which were denied by J. Codilla.
-NAPOCOR after adducing evidence during the trial of
the case, filed a formal offer of evidence before the
lower court consisting of Exhibits "A" to "V" together
with the sub-marked portions thereof. Consequently,
Bangpai and Wallem filed their respective objections to
said formal offer of evidence.
- J. Codilla denied (through an order) the admission and
excluding from the records NAPOCOR’s Exhibits "A",
"C", "D", "E", "H" and its sub-markings, "I", "J" and its
sub-markings, "K", "L", "M" and its sub-markings, "N"
and its sub-markings, "O", "P" and its sub-markings, "Q"
and its sub-markings, "R" and "S" and its sub-markings.
-According to the court a quo: ”The record shows that
the plaintiff has been given every opportunity to
present the originals of the Xerox or photocopies of the
documents it offered. It never produced the originals.
The plaintiff attempted to justify the admission of the
photocopies by contending that "the photocopies
offered are equivalent to the original of the document"
…xxx…the Xerox copies do not constitute the
electronic evidence defined in Section 1 of Rule 2 of the
Rules on Electronic Evidence…xxx… However, these
excluded evidence should be attached to the records of
this case to enable the appellate court to pass upon
them should an appeal be taken from the decision on
trial of this case.”
- NAPOCOR’s MR was denied and so the filed a petition
for Certiorari via R64 before the Court of Appeals
maintaining that J. Codilla acted with GAD amounting to
lack or excess of jurisdiction in denying the admission
of its exhibits and its sub-markings.
- CA dismissed the petition as it appeared that there
was no sufficient showing by NAPOCOR that there was
GAD. It appeared that the pieces of documentary
evidence which were denied admission were not
properly identified by any competent witness. Also,
they found that the judge acted within the pale of his
discretion when he denied admission of said
documentary evidence for in Sec 3 of Rule 130 of the
RoC, when the subject of inquiry are the contents of
documents, no evidence shall be admissible other than
the original documents themselves, except in certain
cases specifically so enumerated therein, and the
A2010
petitioner has not shown that the non-presentation or
non-production of its original documentary pieces of
evidence falls under such exceptions. Lastly, the CA
said that the information (in said exhibits) were not
received, retrieved or produced electronically and that
NAPOCOR had not properly authenticated such
evidence as electronic documents.
- Hence, the instant petition wherein NAPOCOR insists
that the photocopies it presented as documentary
evidence actually constitute electronic evidence based
on its own premise that an "electronic document" as
defined under Section 1(h), Rule 2 of the Rules on
Electronic Evidence is not limited to information that is
received, recorded, retrieved or produced
electronically. Rather, "electronic document" can also
refer to other modes of written expression that is
produced electronically, such as photocopies, as
included in the section�s catch-all proviso: "any print-
out or output, readable by sight or other means".
ISSUE: WON the photocopies are indeed electronic
documents as contemplated in RA No. 8792 or the IRR
of the Electronic Commerce Act, as well as the Rules on
Electronic Evidence/ WON said electronic documents
qualify under the one of the exceptions of Best
Evidence Rule so that those may be admitted as
documentary evidence
HELD: NO/NO.
Reasoning:
-A perusal of the information contained in the
photocopies submitted by NAPOCOR will reveal that not
all of the contents therein, such as the signatures of the
persons who purportedly signed the documents, may
be recorded or produced electronically. By no stretch of
the imagination can a person’s signature affixed
manually be considered as information electronically
received, recorded, transmitted, stored, processed,
retrieved or produced.
- According to the SC, the TC did not commit an error
when it denied the admissibility of the photocopies as
documentary evidence as Napocor failed to establish
that its offer falls under the exceptions (as herein
enumerated).
Best Evidence Rule under Rule 130 (as discussed
by the SC):
21
 Prof. V. A. Avena
When the original document has been lost or
destroyed, or cannot be produced in court, the offeror,
upon proof of its execution or existence and the cause
of its unavailability without bad faith on his part, may
prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the
testimony of witnesses in the order stated. The offeror
of secondary evidence is burdened to prove the
predicates thereof: (a) the loss or destruction of the
original without bad faith on the part of the
proponent/offeror which can be shown by
circumstantial evidence of routine practices of
destruction of documents; (b) the proponent must
prove by a fair preponderance of evidence as to raise a
reasonable inference of the loss or destruction of the
original copy; and (c) it must be shown that a diligent
and bona fide but unsuccessful search has been made
for the document in the proper place or places.
- History of BER: Before the onset of liberal rules of
discovery, and modern technique of electronic copying,
the best evidence rule was designed to guard against
incomplete or fraudulent proof and the introduction of
altered copies and the withholding of the originals. But
the modern justification for the rule has expanded from
the prevention of fraud to a recognition that writings
occupy a central position in the law. The importance of
the precise terms of writings in the world of legal
relations, the fallibility of the human memory as
reliable evidence of the terms, and the hazards of
inaccurate or incomplete duplicate are the concerns
addressed by the best evidence rule. (Lee v. P of the
Phils)
-DEFINITION: "electronic document" refers to
information or the representation of information, data,
figures, symbols or other models of written expression,
described or however represented, by which a right is
established or an obligation extinguished, or by which a
fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed
documents and any printout, readable by sight or other
means which accurately reflects the electronic data
message or electronic document.
-The rules use the word "information" to define an
electronic document received, recorded, transmitted,
stored, processed, retrieved or produced electronically.
This would suggest that an electronic document is
relevant only in terms of the information contained
Evidence
therein, similar to any other document which is
presented in evidence as proof of its contents.
However, what differentiates an electronic document
from a paper-based document is the manner by which
the information is processed; clearly, the information
contained in an electronic document is received,
recorded, transmitted, stored, processed, retrieved or
produced electronically.
* NOTE: It was also said that NAPOCOR continued to
obdurately disregard the opportunities given by the TC
for it to present the originals of the photocopies it
presented BUT at the SC it prayed that it be allowed to
present the originals of the exhibits that were denied
admission or in case the same are lost, to lay the
predicate for the admission of secondary evidence.
However, SC denied said prayer.
DISPOSITIVE: Petition DENIED. CA DECISION of 9
November 2005 AFFIRMED. Costs against petitioner.
REPUBLIC V. VERZOSA
GR NO. 173525
TINGA; March 28, 2008
(chriscaps)
FACTS
- Verzosa filed petition for reconstitution of orig TCT,
alleging that she and Edna Garcia are registered
owners of parcel of land.
- However, the orig was burned when QC Hall was
gutted by fire. The Duplicate Certificate was lost as
shown by Affidavit of Loss.
- Real estate taxes on he prop have been paid.
- RTC set the case for hearing. Only rep from OSG
appeared. Petitioner-appellee was allowed to present
further evidence. Hearing was reset on the ground,
among others, of the need to amend petition to
implead petitioner’s co-owner, Edna Garcia, who is also
her sister. On July 18, 2001, petitioner filed a motion for
leave to present evidence ex-parte without impleading
her co-owner, citing the irreconcilable differences
between them which the RTC granted.
- RTC ordered Register of Deeds to reconstitute.
Hence, the appeal by Republic, through OSG.
- According to the Court of Appeals, the petition for
reconstitution was filed under Sec. 3(f) of Republic Act
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(R.A.) No. 26 which grants the court the authority to
consider other documents which it finds sufficient and
proper bases for the reconstitution prayed for. In this
case, the documentary evidence presented by
respondent Gertrudes B. Verzosa, coupled with the
Report submitted by the Land Registration Authority
(LRA) confirming the previous existence of TCT No.
140606, is sufficient basis to grant the reconstitution.
- OSG argues respondent did not prove that she had
exerted honest efforts to secure the documents
enumerated in the law and had failed to find them.
ISSUE
WON TCT should be reconstituted
HELD
YES.
- Sec. 3 of R.A. No. 26 enumerates the sources upon
which the reconstitution of transfer certificates of title
shall be based.
- Among the sources enumerated in Sec. 3 of R.A. No.
26, the owner’s duplicate of the transfer certificate of
title is given primacy because such document is, by all
accounts, an exact reproduction of the original copy of
the transfer certificate of title. It is required, however,
that the owner’s duplicate certificate itself, and not a
mere photocopy thereof, be presented to the court.
- In this case, only a photocopy of the owner’s duplicate
was presented.
- Photocopy of the owner’s certificate of title presented
by respondent in support of her petition is still
considered secondary evidence. As such, it is
inadmissible unless respondent proves any of the
exceptions provided in Sec. 3, Rule 130.
- The Court explained the order of presentation of
secondary evidence under Sec. 5, Rule 130 of the Rules
of Court as existence, execution, loss, contents. The
order may be changed if necessary in the discretion of
the court. The sufficiency of the proof offered as a
predicate for the admission of an allegedly lost
document lies within the judicial discretion of the trial
court under all the circumstances of the particular case.
- Ultimately, the Court reinstated the decision of the
trial court because of the failure of the Spouses Mateo
to satisfactorily show that the original of the transfer
certificate of title sought to be reconstituted had been
lost or is no longer available, as well as the illegibility of
the photocopy presented.
22
 Prof. V. A. Avena
- Respondent submitted several documents to prove
existence, execution and contents of the Certificate of
Title. Respondent also duly proved loss of owner’s
copy.
- When a court, after hearing of a petition for
reconstitution, finds that the evidence presented is
sufficient and proper to grant the same, that the
petitioner therein is the registered owner of the
property, and that the certificate sought to be
reconstituted was in force at the time it was lost, it
becomes the duty of the court to issue the order of
reconstitution.
Parol Evidence Rule
BPI V FIDELITY & SURETY CO.
G.R. No. L-26743
MALCOLM; October 19, 1927
(joey)
NATURE
Appeal from the decision of the CFI of Manila
FACTS
- Laguna Coconut Oil Co. executed a promissory
wherein it promised to pay the Philippine Vegetable
Company, Inc., or order, P50,000.
- Fidelity and Surety Company of the Philippine Islands
made a notation on the note as follows: “For value,
received, we hereby obligate ourselves to hold the
Laguna Coconut Oil Co. harmless against loss for
having discounted the foregoing note at the value
stated therein.”
- Philippine Vegetable Oil Company endorsed the note
in blank and delivered it to BPI. After maturity of the
note, demand for its payment was made on the Laguna
Coconut Oil Co., the Philippine Vegetable Oil Company,
and the Fidelity and Surety Company of the Philippine
Islands, all of whom refused to pay, the first being
admittedly insolvent.
Evidence
- BPI filed a case against the Laguna Coconut Oil Co.
and the Fidelity and Surety Company. The Fidelity and
Surety Company interposed a demurrer to the plaintiff's
complaint twice and was sustained twice. BPI appealed
to the SC where the ruling was reversed and the case
remanded for further proceedings.
- Back in the TC, Laguna Coconut Oil Co. made no
defense, and judgment by default was obtained against
it. The case as to Fidelity and Surety Company was
submitted to the court upon a stipulation of facts. TC
rendered judgment against the Fidelity and Surety
Company for the full amount of the note, with interest.
Fidelity and Surety Company appealed alleging that the
action involved a reformation of the contract of
guaranty, which was not put in issue by the pleadings.
Judgment was reversed and the action dismissed,
"without prejudice to the bringing of another action
upon the same cause."
- BPI filed a new case wherein it attempted to connect
the promissory note with an existing obligation of the
Philippine Vegetable Oil Company in the form of
another promissory note. The evidence was also
intended to demonstrate that a clear error had been
committed when reference was made to the “Laguna
Coconut Oil Co.” instead of “Bank of the Philippine
Islands” in the notation on the note.
- TC: The note could not have been discounted by the
Laguna Coconut Oil Co., and this must logically have
been done by BPI. Judgment in favor of the BPI for
P50,000 plus interest, attorney's fees, and costs.
ISSUES
WON reformation of the note, and thereafter, its
enforcement, is justified.
HELD
NO
Ratio To justify the reformation of a written instrument
upon the ground of mistake, the concurrence of three
things are necessary, the misake: (1) should be of a
fact; (2) should be proved by clear and convincing
evidence; and (3) should be common to both parties to
the instrument.
Reasoning
- According to Sec. 285 of the Code of Civil Procedure,
a written agreement is presumed to contain all the
terms of the agreement. However, the Code permits
evidence of the terms of the agreement other than the
contents of the writing where a mistake or imperfection
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of the writing, or its failure to express the true intent
and agreement of the parties, is put in issue by the
pleadings.
- Philippine Sugar Estates Development Company vs.
Government of the Philippine Islands: (1) the courts of
equity will reform a written contract where, owing to
mutual mistake, the language used therein did not fully
or accurately express the agreement and intent of the
parties; (2) the relief by way of reformation will not be
granted unless the proof of mutual mistake be "of the
clearest and most satisfactory character;" (3) the
evidence introduced by the appellant met these
stringent requirements.
- Centenera vs. Garcia Palicio; Mendozana vs. Philippine
Sugar Estates Development Co. and De Garay: the
amount of evidence necessary to sustain a prayer for
relief where it is sought to impugn a fact in a document
is always more than a mere preponderance of the
evidence.
- An examination of the note and the guaranty
discloses that in the notation to the note the word
"hold" is interlined. This indicates that the VP
(signatory) of the Fidelity and Surety Company had his
particular attention called to the language of the note,
and corrected the typewritten matter by inserting in ink
the word quoted. That the writer of the notation fell into
a further error in obligating the company to the Laguna
Coconut Oil Co. may be possible. That the writer may
have had in mind to use the words Philippine Vegetable
Oil Company, Inc. may also be possible. The names of
the two parties before the guarantor were Laguna
Coconut Oil Co. and Philippine Vegetable Oil Company,
Inc. The guaranteeing company could not very well
have assumed that BPI at a later date was
contemplating discounting the note.
- It is also apparent on the face of the note that it was
to draw interest at maturity. This would disprove
discount of the note by BPI on or before the maturity
date. In truth, it is not certain that BPI ever did discount
the note.
- The bookkeeping entries of the bank are hardly
competent against a stranger to the transaction.
Moreover, one entry at least in plaintiff's “Exhibit E”
has been changed by erasing the words "y Fidelity and
Surety Co. of the Phil. Islands" and substituting
"Philippine Vegetable Oil Co. garatizado p. Fidelity &
Surety Co. of the Phil. Islands." The book entries taken
at their face value are not conclusive.
23
 Prof. V. A. Avena
- The correspondence between the parties fails to
disclose either an express or implied admission that the
defendant had executed the guaranty in question in
favor of the plaintiff bank. An attempt to interpret the
correspondence merely leads open further into the field
of speculation. Yet the rule is that an admission or
declaration to be competent must have been expressed
in definite, certain, and unequivocal language. Here the
exhibits are couched in language which is neither
definite, certain, nor unequivocal for nowhere do they
contain an admission of a guaranty made by the
defendant company for the protection of the BPI.
- There may have been a mistake here. It would,
however, seem to be straining the natural course of
events to hold the Fidelity and Surety Company of the
Philippine Islands a party to that mistake.
- With all the various pleadings, all the various
incidents, all the various facts, all the various legal
principles, and all the various possibilities to the
forefront, we cannot bring ourselves to conclude that
the plaintiff, by proof of the clearest and most
satisfactory character constituting more than a
preponderance of the evidence, has established a
mutual mistake. Instead, the proof is left far behind
that goal.
Dispositive Judgment appealed from reversed.
SEPARATE OPINION
AVANCEÑA, STREET, VILLAMOR and ROMUALDEZ
[dissenting]
- An examination of the indorsement, or contract shows
that the Fidelity and Surety Company acknowledges
that it has received value for placing its signature on
said indorsement, thereby nominally obligating itself to
hold that Laguna Coconut Oil Co. (sic?) harmless
against loss for having discounted the note. Although
the mistake is not obvious to the superficial reader, the
words used make an impossible situation and
completely frustrate the manifest intention of the
parties. It is proved as a fact that the Laguna Coconut
Oil Co. was debtor to the Philippine Vegetable Oil Co.
and that the note to which the indorsement of guaranty
is appended was given for that indebtedness. That an
error was made in the wording of the indorsement is
obvious and undeniable. The intention of the
contracting parties could only have been that the
Fidelity and Surety Company should hold harmless the
person or entity discounting the note. The plaintiff did
Evidence
in fact discount said note on the faith of this
indorsement, and the instrument should be reformed so
as to give expression to the liability of the defendant
company to the bank.
- By the decision of the court, the Fidelity and Surety
Company is entirely free from the obligation of
guaranty in respect to this note, although it received
value for that very undertaking. We therefore dissent.
LECHUGAS v. CA (LOZAs)
G.R. No. L-39972 & L-40300
GUTIERREZ, JR; August 6, 1986
(ricky)
NATURE
Petition for review
FACTS
- Victoria Lechugas filed a complaint for forcible entry
with damages against the Lozas, alleging that the latter
by means of force, intimidation, strategy and stealth,
unlawfully entered lots A and B, corresponding to the
middle and northern portion of the property owned by
her known as Lot No. 5456 which she allegedly bought
from Leoncia Lasangue as evidenced by a Deed of
Absolute Sale registered in the Office of the Register of
Deeds (Exhibit A). She alleged that they appropriated
the produce for themselves, and refused to surrender
the possession of the land despite demands. The
complaint was dismissed. She appealed to the then CFI
of Iloilo. While the above appeal was pending, she
instituted another action before the CFI of Iloilo for
recovery and possession of the same property against
the Lozas. The two cases were tried jointly. Both cases
were dismissed. The CA sustained the dismissal.
- Leoncia Lasangue, testifying for defendants declared
that she inherited 12 hectares from her parents, being
the only child and heir and that on December 8, 1950,
she sold 6 hectares of her inherited property to Victoria
Lechugas under a public instrument (Exhibit A) which
was prepared at the instance of Victoria Lechugas and
thumb-marked by herself (the vendor was illiterate).
Refuting Lechugas' contention that the land sold to her
is the very land under question, vendor Leoncia
Lasangue was able to specifically point out that the
land which she sold to Lechugas was the lot in the
south known as Lot No. 5522 and not Lot. No. 5456
A2010
which was to the north and which was sold by her
father in 1941 to the predecessor-in-interest of the
Lazos. [Read the original testimony to see how the
defense lawyer, using a piece of paper and the sun's
movement as a reference, skillfully obtained this fact
from an illiterate witness.]
- On the basis of the testimony of vendor Leoncia
Lasangue, the CA upheld the CFI's decision but also
declared Exhibit A as NOT null and void ab initio insofar
as Lasangue was concerned because it could pass
ownership of the lot in the south known as Lot No. 5522
which she intended to sell and actually sold to
Lechugas.
ISSUE
WON the CA erred in considering parol evidence over
the objection of the petitioner in order to vary the
subject matter of the Deed of Definite Sale (Exhibit A)
although the land therein is described and delimited by
metes and bounds and indentified as Lot No. 5456 of
the Lambunao Cadastre.
HELD
NO.
Ratio The parol evidence rule does not apply, and may
not properly be invoked by either party to the litigation
against the other, where at least one of the parties to
the suit is not party or a privy of a party to the written
instrument in question and does not base a claim on
the instrument or assert a right originating in the
instrument or the relation established thereby.
Reasoning The petitioner's reliance on the parol
evidence rule is misplaced. The rule is not applicable
where the controversy is between one of the parties to
the document and third persons. The deed of sale was
executed by Leoncia Lasangue in favor of Victoria
Lechugas. The dispute over what was actually sold is
between Lechugas and the Lazos. Through the
testimony of Leoncia Lasangue, it was shown that what
she really intended to sell and to be the subject of
Exhibit A was Lot No. 5522 but not being able to read
and write and fully relying on the good faith of her first
cousin, the petitioner [walang hiyang pinsan ito ah. Tsk.
], she just placed her thumb mark on a piece of paper
which petitioner told her was the document evidencing
the sale of land. The deed of sale described the
disputed lot instead. [Note: Lechugas was also
occupying Lot. No. 5522 and contended that she
bought it from a certain Leonora Lasangue but couldn’t
24
 Prof. V. A. Avena
present such person or any evidence to support this
claim.]
- From her testimony, there can be no other conclusion
but that Lasangue did not intend to sell, as she could
not have sold, a piece of land already sold by her father
to the predecessor-in-interest of the Lazos.
- The fact that vendor Lasangue did not bring an action
for the reformation of Exhibit A is of no moment. The
undisputed fact is that the Lazos have timely
questioned the validity of the instrument and have
proven that, indeed Exhibit A does not reflect the true
intention of the vendor.
Disposition Petition is hereby DISMISSED.
CRUZ V. COURT OF APPEALS
192 SCRA 209
CRUZ; December 10, 1990
(chriscaps)
NATURE
Petition to review the decision of the CA
FACTS
- Salonga filed complaint for collection and damages
against Cruz alleging that Cruz borrowed fr him
P35,000 evidenced by a receipt.
- Cruz claimed that only P20,000 was pd, leaving
balance of P15,000. He said that he and Salonga
agreed that Salonga would grant him exclusive right to
purchase the harvest of certain fishponds leased by
him in exchange for certain loan accommodations.
- Salonga delivered to Cruz various loans totaling
P15,250 evidenced by 4 receipts and P4,000 receipt of
w/c was lost. Cruz failed to comply by refusing to
deliver the alleged harvest of fishpond and his
indebtedness.
- Cruz denied contracting any loan; he alleged that he
was a lessee of fishponds owned by Yabut and that he
agreed w/ Salonga that Salonga would purchase fish fr
the fishpond. Salonga would also sublease the same
fishpond.
- Cruz admitted having received P35,000 but said these
were received not as loans, but as consideration for the
pakyaw agreement and payment for the sublease.
- Cruz and Salonga entered into a partial stipulation of
facts.
Evidence
- Salonga claimed that aside fr the P35,000, etc., he
also delivered P28,000 w/c is the consideration for the
pakyaw agreement, evidenced by receipt.
- Cruz testified that out of the P35,000 he received,
P28,000 covered full payment of the pakyaw
agreement while P7,000 is advance payment for
sublease.
- TC ruled in favor of Cruz. CA reversed and ordered
Cruz to pay Salonga. CA also found that the amounts
were not payments for pakyaw and sublease, but for
loans extended by Salonga to Cruz.
ISSUES
1. WON Exhibit D is covered by the parol evidence rule
2. WON Exhibit I is covered by the parol evidence rule
HELD
1. NO.
- The reason for the rule is the presumption that when
parties have reduced their agreement to writing they
have made such writing the only repository and
memorial of the truth, and whatever is not ofund in the
writing is deemed waived or abandoned.
- The rule is not applicable because it is predicated on
existence of doc embodying terms of agreement.
Exhibit D doesn’t contain an agreement. It is only a
receipt; not the sole memorial of the agreement. At
most, it is a casual memorandum.
- Wigmore: A receipt will in general fall without the line
of the rule. Usually a receipt is merely a written
admission of a transaction, independently existing.
2. NO.
- Exhibit I doesn’t make categorical declaration that the
P28,000 was received by Cruz on the same date. The
date then can’t be conclusive.
- A distinction should be made between STATEMENT OF
FACT expressed in the instrument and the TERMS of the
contractual act. The former may be varied by parol
evidence; not the latter. The statement in Exhibit I of
the petitioner’s receipt of P28,000 is just a statement of
fact, not a part of the agreement. Thus, parol evidence
may be introduced to explain Exhibit I.
- Even if Exhibits D and I are covered by the rule, its
application by CA was improper bec no objection was
made by Salonga when Cruz introduced evidence to
explain the circumstances. Objections to the evidence
must be made as soon as the grounds therefor become
reasonably apparent. In testimonial evidence, objection
must be made when objectionable question is asked or
after answer is given if objectionable features become
apparent only by reason of such answer. For failure of
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Salonga to object, he is deemed to have waived benefit
of parol evidence rule.
- Court is satisfied that P35,000 was received by Cruz
as payment for pakyaw and sublease agreements.
INCIONG V CA
257 SCRA 578
Romero J; June 26, 1996
(mini)
FACTS:
-Petitioner's liability resulted from the promissory note
in the amount of P50,000.00 which he signed with Rene
C. Naybe and Gregorio D. Pantanosas on February 3,
1983, holding themselves jointly and severally liable to
private respondent Philippine Bank of Communications
(PBC), Cagayan de Oro City branch. The promissory
note was due on May 5, 1983
-Due date came and obligation was left unfulfilled. PBC
sent telegrams to Inciong demanding payment. It also
sent a letter to Nayde. Both obligors did not respond.
Thus PBC filed a suit for the collection of 50,000.
-Case was initially dismissed for failure of plaintiff to
prosecute the case. However, the lower court
reconsidered the dismissal order and required the
sheriff to serve the summonses. Lower court also
dismissed the case against defendant Pantanosas as
prayed for by the private respondent herein.
Meanwhile, only the summons addressed to petitioner
was served as the sheriff learned that defendant Naybe
had gone to Saudi Arabia.
-Inciong on his part stated that: he was approached by
his friend Campos who claimed that he was a partner of
the branch manager of PBC, in the falacata logs
operation. Campos also told him that Rene C. Naybe
was interested in the business and would contribute a
chainsaw to the venture. Campos then persuaded
petitioner to act as a "co-maker" in the said loan.
Petitioner allegedly acceded but with the understanding
that he would only be a co-maker for the loan of
P5,000.00.
-Petitioner alleged further that five (5) copies of a blank
promissory note were brought to him by Campos at his
office. He affixed his signature thereto but in one copy,
he indicated that he bound himself only for the amount
of P5,000.00. Thus, it was by trickery, fraud and
misrepresentation that he was made liable for the
amount of P50,000.00.
25
 Prof. V. A. Avena
-TC and CA ordered Inciong to pay amount. Inciong
appealed
ISSUE: WON Inciong is liable for the payment of
promissory note
HELD: Yes
*RULING ON PAROL EVIDENCE
-Inciong claimed that since the promissory note "is not
a public deed with the formalities prescribed by law but
a mere commercial paper which does not bear the
signature of attesting witnesses," parol evidence may
"overcome" the contents of the promissory note.
The first paragraph of the parol evidence rule states:
"When the terms of an agreement have been reduced
to writing, it is considered as containing all the terms
agreed upon and there can be, between the parties and
their successors-in-interest, no evidence of such terms
other than the contents of the written agreement."
-the rule does not specify that the written agreement
be a public document. What is required is that
agreement be in writing as the rule is in fact founded
on "long experience that written evidence is so much
more certain and accurate than that which rests in
fleeting memory only, that it would be unsafe, when
parties have expressed the terms of their contract in
writing, to admit weaker evidence to control and vary
the stronger and to show that the parties intended a
different contract from that expressed in the writing
signed by them. Thus, for the parol evidence rule to
apply, a written contract need not be in any particular
form, or be signed by both parties. As a general rule,
bills, notes and other instruments of a similar nature
are not subject to be varied or contradicted by parol or
extrinsic evidence.
-By alleging fraud in his answer, petitioner was actually
in the right direction towards proving that he and his
co-makers agreed to a loan of P5,000.00 only,
considering that, where a parol contemporaneous
agreement was the inducing and moving cause of the
written contract, it may be shown by parol evidence.
However, fraud must be established by clear and
convincing evidence, mere preponderance of evidence,
not even being adequate. Petitioner's attempt to prove
fraud must, therefore, fail as it was evidenced only by
his own uncorroborated and, expectedly, self-serving
testimony.
*other contentions
Evidence
-Inciong claimed that since the complaint was dropped
against Naybe, his co-debtor and Pantonasa the
guarantor, he should also be released from liability
citing Art 2080 of CC. however contention is invalid.
-the promissory note involved in this case expressly
states that the three signatories therein are jointly and
severally liable, any one, some or all of them may be
proceeded against for the entire obligation. The choice
is left to the solidary creditor to determine against
whom he will enforce collection. Consequently, the
dismissal of the case against Judge Pontanosas may not
be deemed as having discharged petitioner from
liability as well. As regards Naybe, suffice it to say that
the court never acquired jurisdiction over him.
Petitioner, therefore, may only have recourse against
his co-makers, as provided by law.
DUVAZ CORP. V EXPORT AND INDUSTRY BANK
GR 163011
GARCIA; June 7, 2007
(bri)
NATURE
Petition for review (Rule 45, ROC) of the CA Decision
dated March 26, 2004, nullifying an earlier Order of
the Makati RTC w/c granted petitioner’s prayer for a
writ of preliminary injunction in its action for
reformation of instrument against herein respondent,
Export and Industry Bank (EIB).
FACTS
- During the period 1994-1995, RDR Property Holdings,
Inc. (RDR), which was a subsidiary of petitioner Duvaz
Corp (Duvaz) until it was eventually absorbed by the
latter, obtained various loans from the then Urban
Banking Corporation (Urban Bank) to finance its real
estate business. These loans were secured by real
estate mortgages on 17 condominium units and 30
parking slots at The Peak Condominium in Makati City.
- Sometime after it declared a bank holiday on April 25,
2000, Urban Bank was acquired and merged with
respondent EIB.
- Meanwhile, as a consequence of RDR being absorbed
by Duvaz, the latter acquired all the assets and
liabilities of the former, more specifically RDR’s loan
obligations with Urban Bank, which loan obligations
were later transferred to EIB as a result of the
corporate merger of the 2 banks.
A2010
- With the 1997 Asian financial crisis sending the Phil
economy into turmoil, Duvaz defaulted in the payment
of its loan obligations with Urban Bank as they fell due.
On record, petitioner and Urban Bank mutually agreed
to the restructuring of the former’s indebtedness. By
virtue of said loan restructuring, Duvaz executed in
favor of Urban Bank 12 promissory notes for P20M
each and 1 for P23M (total= P263M) with a uniform
interest rate of 18.75% per annum, and all to mature
on Oct 31, 2000.
- EIB took over the operations of Urban Bank sometime
before maturity of the restructured loans. Eventually,
the restructured loans matured and became due and
demandable. Because the loans remained unpaid,
however, EIB required Duvaz to submit a mutually
acceptable plan for the payment of the loan which, as
of June 30, 2002, already amounted to
P562,157,530.02 inclusive of interest and penalty
charges. But instead of submitting any proposal for a
plan of payment, as required by EIB, Duvaz protested
the total amount of obligation being demanded upon.
- Aug 8, 2002: EIB sent a final demand letter to Duvaz
to settle its debts.
- Aug 29: On account of said demand letter, Duvaz filed
in the Makati RTC against EIB a complaint for
reformation of instrument with prayer for a TRO and/or
writ of preliminary injunction to enjoin EIB, as
defendant in the suit, from commencing any
foreclosure proceedings on the mortgaged properties of
Duvaz as plaintiff. In its complaint, Duvaz alleged that
its real agreement of dacion en pago with Urban Bank
(EIB’s predecessor-in-interest), w/c agreement was
intended for the full and complete settlement of its
entire obligation, was not reflected in the loan-
restructuring agreement that was entered into in 1998,
hence, the need to modify the terms thereof to reflect
the parties’ true intention.
- Pending determination of the merit of petitioner’s
prayer for a writ of preliminary injunction, the parties
mutually agreed to maintain the status quo ante. TC,
therefore, found no need to issue any TRO.
- Eventually, however, via an Order dated Sep 25,
2002, the court granted the preliminary injunction
prayed for by Duvaz, to wit:
WHEREFORE, in the interest of justice and equity,
the Court GRANTS the injunction prayed for and
accordingly orders defendant [to refrain] from
initiating any foreclosure proceedings until further
26
 Prof. V. A. Avena
orders from this Court. Bond fixed at P10M. (Words in
brackets added.)
- EIB’s MFR denied by the court in its subsequent order
of Jan 8, 2003. Therefrom, EIB went to the CA on a
petition for certiorari wherein said court promulgated
the assailed Decision, thus:
WHEREFORE, premises considered, the instant
petition for certiorari is hereby GRANTED.
Accordingly, the assailed orders are ANNULLED AND
SET ASIDE and a new one issued DENYING
[petitioner’s] prayer for a writ of preliminary
injunction.
- In granting EIB’s certiorari petition and nullifying the
questioned orders of the TC, CA notes Duvaz’ failure to
show in its complaint and at the hearing of its
application for preliminary injunction the indubitable
existence of its right to the injunctive relief:
In the case at bar, [petitioner] sought to enjoin
[respondent] from foreclosing its mortgage properties
on the ground that their alleged agreement entered
into in 1998 is in reality a dacion en pago and not a
loan-restructuring agreement which is the written
contract. In short, [petitioner’s] alleged right emanates
from an alleged dacion en pago which is yet to be
proven in Court. This right is, therefore, contingent and
future which cannot be protected by a writ of
preliminary injunction. Moreover, the parol evidence
rule proscribes the varying of the terms of a
written agreement except in certain cases.
[Petitioner] claims that its case falls under the
exception, but then this is harping on the exception,
not the rule, which is yet to be proven during trial. If
indeed, there is such an agreement as dacion en pago,
then only at that time can we say that [petitioner]
possesses the right to be protected. But of course, this
is merely conjectural and a future proposition, if not
assumption, which is, however, insufficient to support
the grant of a writ of preliminary injunction. (Words in
brackets supplied.)
ISSUE/S
1. WON there exists a right in esse on petitioner’s part
which may rightfully be the basis for the issuance of a
writ of preliminary injunction
2. WON EIB’s recourse to the CA constitutes forum
shopping
HELD
1. NO.
Evidence
Ratio Anent the first issue, the requisites for
preliminary injunctive relief are: (a) the invasion of
right sought to be protected is material and substantial;
(b) the right of the plaintiff is clear and unmistakable;
and (c) there is an urgent and paramount necessity for
the writ to prevent serious damage. As such, a writ of
preliminary injunction may be issued only upon clear
showing of an actual existing right to be protected
during the pendency of the principal action. The twin
requirements of a valid injunction are the existence of
a right and its actual or threatened violation. Thus, to
be entitled to an injunctive writ, the right to be
protected and the violation against that right must be
shown.
Reasoning Almeida v. CA:
It must be stressed that injunction is not designed
to protect contingent or future rights, and, as such,
the possibility of irreparable damage without proof of
actual existing right is no ground for an injunction. A
clear and positive right especially calling for judicial
protection must be established. Injunction is not a
remedy to protect or enforce contingent, abstract, or
future rights; it will not issue to protect a right not in
esse and which may never arise, or to restrain an
action which did not give rise to a cause of action.
There must be an existence of an actual right.
Hence, where the plaintiff’s right or title is doubtful
or disputed, injunction is not proper.
An injunctive remedy may only be resorted to
when there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any
standard compensation. The possibility of
irreparable damage without proof of an actual
existing right would not justify injunctive relief in his
favor.
x x x x x x x x x
x x x. In the absence of a clear legal right, the
issuance of the injunctive writ constitutes grave
abuse of discretion. As the Court had the occasion to
state in Olalia v. Hizon:
It has been consistently held that there is no
power the exercise of which is more delicate,
which requires greater caution, deliberation and
sound discretion, or more dangerous in a doubtful
case, than the issuance of an injunction. It is the
strong arm of equity that should never be
extended unless to cases of great injury, where
courts of law cannot afford an adequate or
commensurate remedy in damages.
A2010
Every court should remember that an injunction
is a limitation upon the freedom of action of the
defendant and should not be granted lightly or
precipitately. It should be granted only when the
court is fully satisfied that the law permits it and
the emergency demands it.
We are in full accord with the CA when it struck down,
for having been issued with grave abuse of discretion,
RTC’s Order granting petitioner’s prayer for a writ of
preliminary injunction during the pendency of the main
case. The reason therefor is that the right sought to be
protected by the petitioner in this case through the
writ of preliminary injunction is merely contingent and
not in esse. It bears stressing that the existing written
contract between petitioner and respondent was
admittedly one of loan restructuring; there is no
mention whatsoever or even a slightest reference in
that written contract to a supposed agreement of
dacion en pago. In fine, it is still necessary for
petitioner to establish in the main case its rights on the
alleged dacion en pago before those rights become in
esse or actual and existing. Only then can the
injunctive writ be properly issued. It cannot be the
other way around. Otherwise, it will be like putting the
cart before the horse.
Besides, conformably to the Parol Evidence Rule,
which is the general rule, when the terms of an
agreement have been reduced to writing, it is
considered as containing all the terms agreed
upon and there can be, as between the parties
and their successors in interest, no evidence of
such terms other than the contents of the written
agreement. This poses another big obstacle to a
favorable finding of petitioner’s right in esse under the
alleged dacion en pago agreement. Again, petitioner
must first establish that alleged agreement in the main
case where it bears the burden of duly proving by
competent evidence that the written loan restructuring
agreement failed to express the true intent of the
parties. Until and unless this has been successfully
carried out, there is no right in esse to speak of. And
with EIB denying petitioner’s allegation of a right
arising from an alleged dacion en pago agreement
supposedly entered into by it not with EIB itself, but
with Urban Bank, petitioner’s burden becomes doubly
cumbersome.
We find no such actual and existing right in favor of the
petitioner that demands protection by the office of
preliminary injunction.
27
 Prof. V. A. Avena
2. NO.
Reasoning EIB assailed TC’s order directing the
issuance of the writ of preliminary injunction by filing a
petition for certiorari with the CA. Seeking a reversal of
an adverse judgment or order by appeal or certiorari
does not constitute forum shopping. Such remedies
are sanctioned and provided for by the rules. There will
only be forum shopping when a party seeks a favorable
opinion, other than by appeal or certiorari, in another
forum. There is simply no rhyme nor reason to tag as
forum shopping EIB’s availment of a remedy provided
under the rules in a situation where, as here, the RTC
clearly gravely abused its discretion.
Besides, the function of certiorari before the CA is only
to annul the assailed interlocutory order of the trial
court and nothing else. The CA cannot go beyond the
said assailed interlocutory order and dismiss the main
action which has not yet been resolved with finality.
Disposition WHEREFORE, the instant petition is
DENIED and the assailed CA Decision dated 26 March
2004 is AFFIRMED in toto.
Disqualification by Reason of Marriage
PEOPLE VS FRANCISCO
(yella)
U.S. V ANTIPOLO
G.R. No. L-13109
FISHER; March 6, 1918
(rean)
FACTS
- The appellant Antipolo was convicted by CFI Batangas,
for the murder of one Fortunato Dinal. He appealed.
One error assigned is based upon the refusal of the trial
judge to permit Susana Ezpeleta, the widow of victim
Dinal, to testify as a witness on behalf of the defense
concerning certain alleged dying declarations. At the
witness stand she stated that she is the widow of
Fortunato Dinal, and was asked: "On what occasion did
your husband die?" To this question the fiscal objected
upon the ground that the witness is disqualified from
testifying in this case in which her husband is the
injured party.
Evidence
- Counsel for defendant insisted that the witness was
competent; that the parties to the prosecution of a
criminal case are the Government and the accused;
that, furthermore the marriage of Dinal to the witness
having been dissolved by the death of her husband, she
is no longer his wife, and so not subject to any
disqualification arising from the status of marriage.
- Objection sustained. To this objection counsel took
exception and made an offer to prove by the excluded
witness the facts which he expected to establish by her
testimony. Concerning these facts it is sufficient at this
time to say that some of them would be both material
and relevant, to such a degree that if proven to the
satisfaction of the court, they might have lead to the
acquittal of the accused, as they purported to relate to
the dying declarations of the deceased, concerning the
cause of his death, the general purport being that his
injuries were due to fall and not to the acts imputed to
the accused.
ISSUES
1 WON the widow Susan Ezpeleta was disqualified as a
witness by reason of marriage
2 WON the dying declaration of the victim to his wife
constitute privileged communication
HELD
1 NO.
Ratio: On grounds of public policy the wife can not
testify against her husband as to what came to her
from him confidentially or by reason of the marriage
relation, but this rule does not apply to a dying
communication made by the husband to the wife on the
trial of the one who killed him. The declaration of the
deceased made in extremes in such cases is a thing to
be proven, and this proof may be made by any
competent witness who heard the statement. The wife
may testify for the state in cases of this character as to
any other fact known to her (Arnett vs. Commonwealth,
114 Ky., 593, 596)
Reasoning: Sec. 58 of Gen. Orders No. 58 (1900)
states that: Except with the consent of both, or except
in cases of crime committed by one against the other,
neither husband nor wife shall be a competent witness
for or against the other in a criminal action or
proceeding to which one or both shall be parties.
- This case does not fall with the text of the statute or
the reason upon which it is based, and therefore it is
inapplicable. The purpose of Sec. 58 is to protect
A2010
accused persons against statements made in the
confidence engendered by the marital relation, and to
relieve the husband or wife to whom such confidential
communications might have been made from the
obligation of revealing them to the prejudice of the
other spouse. Such is not the case at bar.
2 NO.
Ratio: It can not be contended that the dying
declaration testified to by the witness was a
confidential communication made to her; on the
contrary, it was evidently made in the furtherance of
justice for the express purpose that it should be
testified to in the prosecution of the defendant. (Arnett
vs. Commonwealth, 114 Ky., 593, 596)
Reasoning: Obviously, when a person at the point of
death as a result of injuries he has suffered makes a
statement regarding the manner in which he received
those injuries, the communication so made is in no
sense confidential. On the contrary, such a
communication is made for the express purpose that it
may be communicated after the death of the declarant
to the authorities concerned in inquiring into the cause
of his death.
- The declarations of a deceased person while in
anticipation of certain impending death, concerning the
circumstances leading up to the death, are admissible
in a prosecution of the person charged with killing the
declarant. (U. S. vs. Gil, 13 Phil. 530.) Such dying
declarations are admissible in favor of the defendant as
well as against him. (Mattox vs. U. S., 146 U. S., 140.) It
has been expressly held in several jurisdictions in the
United States that the widow of the deceased may
testify regarding his dying declarations.
Disposition: Judgment of the court below is hereby
SET ASIDE and a new trial is granted at which the
testimony of the witness Susana Ezpeleta will be
admitted.
ALVAREZ V. RAMIREZ
GR No. 143439;
Sandoval-Gutierrez; 14 October 2005
(ice)
NATURE
Petition for review on certiorari
28
 Prof. V. A. Avena
FACTS
Susan Ramirez (respondent) is the complaining witness
in the criminal case for arson pending before the RTC.
The accused is Maximo Alvarez (petitioner). He is the
husband of Esperanza G. Alvarez, sister of respondent.
Private prosecutor called Esperanza Alvarez to the
witness stand as the first witness against petitioner, her
husband. Petitioner and his counsel raised no
objection.Petitioner, through counsel, filed a motion to
disqualify Esperanza from testifying against him
pursuant to Rule 130 of the Revised Rules of Court on
marital disqualification.
Trial court issued an Order disqualifying Esperanza
Alvarez from further testifying and deleting her
testimony from the records.CA reversed the RTC
decision.
ISSUE
WON Esperanza Alvarez can testify against her
husband
HELD/ RATIO
Yes. Section 22, Rule 130 of the Revised Rules of Court
has an exception, where the marital and domestic
relations are so strained that there is no more harmony
to be preserved nor peace and tranquility which may
be disturbed, the reason based upon such harmony and
tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury based
on that identity is non-existent. Likewise, in such a
situation, the security and confidences of private life,
which the law aims at protecting, will be nothing but
ideals, which through their absence, merely leave a
void in the unhappy home. This is in lieu of the
justification for the rule which are
1. There is identity of interests between husband and
wife;
2. If one were to testify for or against the other,
there is consequent danger of perjury;
3. The policy of the law is to guard the security and
confidences of private life, even at the risk of an
occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is want of domestic tranquility there
is danger of punishing one spouse through the hostile
testimony of the other.
In Ordoño vs. Daquigan, this Court held: ‘The rule that
the injury must amount to a physical wrong upon the
person is too narrow; and the rule that any offense
Evidence
remotely or indirectly affecting domestic harmony
comes within the exception is too broad. The better
rule is that, when an offense directly attacks, or directly
and vitally impairs, the conjugal relation, it comes
within the exception to the statute that one shall not be
a witness against the other except in a criminal
prosecution for a crime committee (by) one against the
other.’”
Obviously, the offense of arson attributed to
petitioner, directly impairs the conjugal relation
between him and his wife Esperanza. His act, as
embodied in the Information for arson filed
against him, eradicates all the major aspects of
marital life such as trust, confidence, respect and
love by which virtues the conjugal relationship
survives and flourishes.
“The act of private respondent in setting fire to the
house of his sister-in-law Susan Ramirez, knowing fully
well that his wife was there, and in fact with the alleged
intent of injuring the latter, is an act totally alien to
the harmony and confidences of marital relation
which the disqualification primarily seeks to
protect. The criminal act complained of had the
effect of directly and vitally impairing the
conjugal relation. It underscored the fact that the
marital and domestic relations between her and the
accused-husband have become so strained that there is
no more harmony, peace or tranquility to be preserved.
The Supreme Court has held that in such a case,
identity is non-existent. In such a situation, the
security and confidences of private life which the law
aims to protect are nothing but ideals which through
their absence, merely leave a void in the unhappy
home. (People v. Castañeda, 271 SCRA 504). Thus,
there is no longer any reason to apply the Marital
Disqualification Rule.”
It should be stressed that as shown by the records,
prior to the commission of the offense, the relationship
between petitioner and his wife was already strained.
In fact, they were separated de facto almost six months
before the incident. Indeed, the evidence and facts
presented reveal that the preservation of the marriage
between petitioner and Esperanza is no longer an
interest the State aims to protect.
DISPOSITION
AFFIRMED
A2010
Disqualification by Reason of Death and Insanity
LICHAUCO VS ATLANTIC, GULF AND PACIFIC CO.
(monch)
GOÑI V CA (VICENTE)
G.R. No. L-27434
FERNAN; September 23, 1986
(Anton)
NATURE
This is an appeal by certiorari from the decision of the
then CA, as well as from the resolution denying
petitioners' motion for reconsideration.
FACTS
- The 3 haciendas known as San Sebastian, Sarria and
Dulce Nombre de Maria situated in the Bais, Negros
Oriental, were originally owned by TABACALERA.
- Sometime in 1949, the late Praxedes T. Villanueva,
predecessor-in-interest of petitioners, negotiated with
TABACALERA for the purchase of said haciendas.
However, as he did not have sufficient funds to pay the
price, Villanueva with the consent of TABACALERA,
offered to sell Hacienda Sarria to one Santiago
Villegas, who was later substituted by Joaquin Villegas.
TABACALERA did not agree to the transaction between
Villanueva and Villegas without a guaranty; thus
Gaspar Vicente (herein respondent) stood as
guarantor for Villegas in favor of TABACALERA.
- Either because the amount realized from the
transaction between Villanueva and Villegas still fell
short of the purchase price of the three haciendas, or in
consideration of the guaranty undertaken by Vicente,
Villanueva contracted or promised to sell to
Vicente fields nos. 3, 4 and 13 of Hacienda Dulce
Nombre de Maria for the sum of P13,807.00. This
agreement was reduced to writing and signed by
Genaro Goñi (petitioner) as attorney-in-fact of
Villanueva.
- Vicente thereafter advised TABACALERA to debit from
his account the amount of P13,807.00 as payment for
the balance of the purchase price. However, as only the
amount of P12,460.24 was actually needed to complete
the purchase price, only the latter amount was debited
from Vicente’s account. The difference was supposedly
paid by Vicente to Villanueva, but as no receipt
evidencing such payment was presented in court, this
fact was disputed by petitioners.
29
 Prof. V. A. Avena
- Subsequent to the execution of the contract/promise
to sell, Villanueva was able to raise funds by selling a
property. He thus went to private respondent Vicente
for the purpose of rescinding the contract/promise to
sell. However, as the amount of P12,460.24 had
already been debited from private respondent's
account, it was agreed that lots 4 and 13 of the
Hacienda Dulce Nombre de Maria would merely be
leased to private respondent Vicente for a period of
five years at an annual rental of 15% of the gross
income, said rent to be deducted from the money
advanced by Vicente and any balance owing to
Villanueva would be delivered by Vicente
together with the lots at the end of the
stipulated period of lease.
- December 10, 1949: TABACALERA executed a formal
deed of sale covering the three haciendas in favor of
Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda
Dulce Nombre de Maria were thereafter registered in
the name of Villanueva. The fields were likewise
mortgaged by Villanueva to the Rehabilitation Finance
Corporation (RFC), later transferred to the PNB.
- Fields nos. 4 and 13 were delivered to private
respondent Vicente after the 1949-1950 milling season
in January and February, 1950.
- June 17, 1950: Villanueva executed a "Documento de
la Venta Definitive" in favor of Joaquin Villegas,
covering Lot No. 314 of the Cadastral Survey of Bais
(Hacienda Sarria). A supplemental instrument was later
executed by Villanueva in favor of Villegas to include in
the sale of June 17, 1950 the sugar quota of the land.
- November 12, 1951: Villanueva died. Intestate
proceedings were instituted on November 24, 1951
before the then CFI of Negros. Among the properties
included in the inventory submitted to the court
were fields nos. 3, 4 and 13 of Hacienda Dulce
Nombre de Maria.
- On the day before the intestate proceedings were
ordered closed and the estate of the late Praxedes
Villanueva delivered to his heirs, respondent Vicente
instituted an action for recovery of property and
damages before the then CFI of Negros Oriental against
petitioner Goñi in his capacity as administrator of the
intestate estate of Praxedes Villanueva. Vicente sought
to recover field no. 3 of the Hacienda Dulce Nombre de
Maria, basing his entitlement thereto on the
contract/promise to sell executed by the late
Praxedes Villanueva in his favor on October 24,
1949.
Evidence
- On October 25, 1954, petitioner Goni as defendant in
Civil Case No. 2990, filed an answer with counterclaim
for accounting of the produce of fields nos. 4 and 13, as
well as the surrender thereof. After an answer to the
counterclaim had been filed, private respondent
Vicente amended his complaint on September 1, 1955,
to include a prayer for damages representing the
produce of field no. 3 from 1949-50 until delivery
thereof to him. An answer with counterclaim to the
amended complaint was duly filed, and on April 25,
1956, private respondent Vicente amended his
complaint anew to include as parties-defendants the
heirs of the late Praxedes Villanueva.
- July 13, 1957: the parties entered into a stipulation of
facts, agreeing, among others, on the costs of
production and produce of the three fields in question.
The case thereafter proceeded to trial. Defendants
presented Genaro Goñi, who testified on the alleged
verbal lease agreement.
- Trial court rendered a decision ordering therein
defendants-heirs to deliver to Gaspar Vicente field no 3,
to execute a formal deed of sale covering fields nos. 3,
4 and 13 in favor of Vicente.
- Both parties appealed the decision to the then Court
of Appeals. CA affirmed the decision of the lower court.
Petitioner’s Claim
- Hacienda Dulce Nombre de Maria would merely be
leased.
ISSUE(S)
1. WON Vicente may testify on matters of fact
occurring before the death of Praxedes Villanueva,
which constitutes a claim or demand upon his
estate.
2. WON a written promise to sell dated October 1949
be novated into a verbal agreement of lease during
the lifetime of the promissory, whose death
occurred on November 1951, by facts and
circumstances substantiated by competent oral
evidence.
HELD
1. YES (General Rule ay HINDI)
Ratio The protection was waived. And the
disadvantage sought to be prevented by the law does
not exist in the said case.
Reasoning
A2010
- Under ordinary circumstances, respondent Vicente
would be disqualified by reason of interest from
testifying as to any matter of fact occurring before the
death of Praxedes T. Villanueva, such disqualification
being anchored on Section 20(a) of Rule 130,
commonly known as the Survivorship Disqualification
Rule or Dead Man Statute, which provides as follows:
Section 20. Disqualification by reason of interest or
relationship.-The following persons cannot testify as
to matters in which they are interested, directly or
indirectly, as herein enumerated:
(a) Parties or assignors of parties to a case, or persons
in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a
deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of
such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact
occurring before the death of such deceased person
or before such person became of unsound mind.
- The object and purpose of the rule is to guard
against the temptation to give false testimony in
regard to the transaction in question on the part
of the surviving party and further to put the two
parties to a suit upon terms of equality in regard
to the opportunity of giving testimony. It is
designed to close the lips of the party plaintiff when
death has closed the lips of the party defendant, in
order to remove from the surviving party the
temptation to falsehood and the possibility of fictitious
claims against the deceased.
- The defendants-heirs are properly the
"representatives" of the deceased, not only because
they succeeded to the decedent's right by descent or
operation of law, but more importantly because they
are so placed in litigation that they are called on to
defend which they have obtained from the deceased
and make the defense which the deceased might have
made if living, or to establish a claim which the
deceased might have been interested to establish, if
living.
- HOWEVER, such protection was effectively waived
when counsel for petitioners cross-examined private
respondent Vicente. A waiver occurs when
plaintiff's deposition is taken by the
representative of the estate or when counsel for
the representative cross-examined the plaintiff
30
 Prof. V. A. Avena
as to matters occurring during deceased's
lifetime.
- The inequality or injustice sought to be avoided by
Section 20(a) of Rule 130, where one of the parties no
longer has the opportunity to either confirm or rebut
the testimony of the other because death has
permanently sealed the former's lips, does not
actually exist in the case at bar, for the reason
that petitioner Goñi could and did not negate the
binding effect of the contract/promise to sell.
- The petitioners presented a counterclaim against
private respondent Vicente. When Vicente thus took
the witness stand, it was in a dual capacity as plaintiff
in the action for recovery of property and as defendant
in the counterclaim for accounting and surrender of
fields nos. 4 and 13. Evidently, as defendant in the
counterclaim, he was not disqualified from testifying as
to matters of fact occurring before the death of
Praxedes Villanueva, said action not having been
brought against, but by the estate or representatives of
the estate/deceased person.
- The adverse party is competent to testify to
transactions or communications with the deceased or
incompetent person which were made with an agent of
such person in cases in which the agent is still alive and
competent to testify. But the testimony of the adverse
party must be confined to those transactions or
communications which were had with the agent. Goñi
was attorney-in-fact of Praxedes. He was privy to the
circumstances surrounding the contract, and could
therefore confirm or deny the allegations of Vicente.
2. There was novation.
Reasoning
- The novation of the written contract/promise to sell
into a verbal agreement of lease was clearly and
convincingly proven not only by the testimony of
petitioner Goñi, but likewise by the acts and conduct of
the parties subsequent to the execution of the
contract/promise to sell. Thus, after the milling season
of crop year 1949-50, only fields nos. 4 and 13 were
delivered to private respondent Vicente. Fields nos. 3, 4
and 13 were subsequently registered in Villanueva's
name and mortgaged with the RFC. Villanueva likewise
executed a deed of sale covering Hacienda Sarria in
favor of Joaquin Villegas. All these were known to
private respondent Vicente, yet he did not take any
steps toward asserting and/or protecting his claim over
fields nos. 3, 4 and 13 either by demanding during the
Evidence
lifetime of Villanueva that the latter execute a similar
document in his favor, or causing notice of his adverse
claim to be annotated on the certificate of title of said
lots.
- The verbal lease agreement was negotiated by and
between Villanueva and private respondent Vicente
themselves. Being close friends and relatives it can be
safely assumed that they did not find it necessary to
reduce the same into writing.
- Petitioners, having clearly and sufficiently shown that
the contract/promise to sell was subsequently novated
into a verbal lease agreement, it follows that they are
entitled to a favorable decision on their counterclaim.
DISPOSITION
The decision appealed from is hereby reversed.
ONG CHUA vs. CARR
53 PHIL 980
OSTRAND; Jan 17, 1929
(marge)
NATURE
Appeal by the defendants from a CFI Zamboanga
decision
FACTS
-Lots Nos. 136 and 137 and the house on lot No. 132
originally belonged to one Henry E. Teck, and lot No.
135 was the property of Teck's wife, Magdalena Lim.
Sometime prior to June 20, 1923, it seems that the
spouses sold the property in question to plaintiff Ong
Chua, and on June 17, 1923, the latter executed a
public document granting to Lim the right to
repurchase lot 135 for the sum of P6,500 within four
years from that date, and on the 20th of the same
month, he executed another public document in which
he agreed to sell lots Nos. 136, 137, and the house on
lot 132 to Teck for the sum of P13,500 at any time
within four years from date. Neither one of the
documents was placed on record with the register of
deeds.
-July, 1925: Edward Carr came to Zamboanga, went to
the office of Moore and sought the advice and
assistance of the latter in regard to purchasing coconut
lands. After various interviews, Moore called Carr's
A2010
attention to the lots above-mentioned and told him that
he could buy the lots for P20,000, the amount which
Ong Chua paid for them to Teck and Lim. Carr entered
into negotiations with Ong Chua and Moore, and many
conversations took place in which Moore, among other
things, informed Carr that Teck and his wife had the
right to repurchase the property in question from Ong
Chua and that such rights would expire in June, 1927.
-Dec 14, 1925: Ong Chua and Carr went to the office of
Moore, to whom they delivered copies of the
documents under which Teck and Lim acquired their
rights to repurchase the property involved, and
requested him to draw the deed of sale of the property
from Ong Chua to Carr. Before the drafting of the deed,
Ong Chua stated to Moore that he consented to sell the
properties to Carr on the condition that the sale should
be subject to the rights of Teck and Lim to have the
property reconveyed to them and that said rights were
to be respected by the vendee. According to Moore's
own testimony, Carr was fully aware of those rights
even before the execution of the deed and that he
consented to embody stipulations to that effect in said
deed.
-The purchase price of the property stipulated between
vendor and vendee was P20,000. When the deed of
sale was about to be drafted, Carr informed Moore that
he had only P13,500 on hand and that he desired to
obtain a loan of P6,500 from the Zamboanga Mutual
Building and Loan Association of which Moore was the
secretary. Moore told him in effect that the loan could
not be made upon property the titles to which were not
clear and that the right of Teck and Lim to repurchase
were not entered upon the certificates of title to the
property. Moore also told Carr that the deed of sale
could be made in such a form that Carr's title to the
property purchased would appear to be absolute but
that Carr was to bear in mind that the rights of Teck
and Lim still existed and that the deed and other
documents must be left in his, Moore's, possession until
the expiration of the term for the right of repurchase
and that, if the deed were made in that form, the loan
of P6,500 could be obtained.
-Moore thereupon instructed his clerk to prepare and
typewrite the deed of sale without including therein the
condition that the sale was subject to Teck's and Lim's
rights to repurchase. The deed was signed by Ong Chua
in the presence of Darlucio and duly acknowledged
before Moore as notary public. It may be noted that
Ong Chua did not understand English and was therefore
31
 Prof. V. A. Avena
ignorant of the arrangement arrived at between Moore
and Carr in connection with the loan, but he asked
Moore if the document contained the conditions in
reference to Teck's right to repurchase the property
and was told that the document was sufficient.
-After the deed was prepared and signed, Ong Chua
told Carr and Moore that lot No. 137 was mortgaged by
him to the Bank of the Philippine Islands for P6,500, the
rate of interest being 10 per cent per annum. Moore
stated that the Zamboanga Building and Loan
Association could not lend money at less than 13 per
cent per annum. Ong Chua then stated that he was
willing to let the mortgage on the lot given to the bank
stand until the expiration of the term for the
repurchases. As this arrangement would save Carr a
considerable sum of money, he agreed to the
proposition and paid only P13,500 in cash and
promised, in writing, to pay to the vendor the balance
of the purchase price, P6,500, with interest at 10 per
cent per annum, on or before July 1, 1927. The loan
from the Building and Loan Association thus became
unnecessary, but instead of redrafting the deed, it was
agreed that Moore would keep the deed and the other
documents in his custody and would not deliver them
to any one until the expiration of the period for
repurchase.
-Sept 1926: Moore was taken critically ill, and while he
was under medical treatment in the Zamboanga
Hospital, Carr came to him on various occasions and
demanded that the documents be delivered to him. At
first Moore refused to make the delivery on the ground
that it was contrary to their agreement and might
result to the prejudice of the rights of Teck and Lim, but
Carr continued to molest Moore with his demand for the
delivery of the papers, and finally, in order to escape
further annoyances and insinuations of Carr, he
surrendered the deed to the latter, who almost
immediately presented it to the register of deeds for
registration.
-July, 1926: Teck offered to repurchase the property in
question from Ong Chua who thereupon demanded of
Carr the reconveyance of the property to the spouses,
Teck and Lim, but Carr refused to do so, claiming that
he had an absolute title to said property, and Ong Chua
then learned, for the first time, that the deed in
question contained no reference to the rights of Teck
and Lim to repurchase the property.
-This action was brought. Defendant’s demurrer was
overruled. He thereupon filed an answer pleading the
Evidence
general issue and setting up as special defenses that
the deed in question contained no stipulation as to
rights of repurchase and that if there was any
agreement or promise on the part of the defendant to
convey the property to Teck and Lim or to the plaintiff,
as alleged in the complaint, such agreement and
promise was for the sale of real property, or an interest
therein, and that neither said agreement or promise,
nor any note or memorandum was made in writing or
subscribed by the defendant or by any authorized
person for him. Subsequent to the filing of the answer,
Carr died, and the administrator of his estate, Manuel
Igual, was substituted as defendant. At the trial of the
case, no evidence was offered by the defendant, and,
consequently, the facts hereinbefore stated stand
uncontradicted. Upon such facts, CFI Zamboanga
ordered the reformation of the deed. Hence, this
appeal.
ISSUES
1. WON the court erred in permitting Ong Chua, to
testify to facts occurring prior to the death of the
defendant Carr
2. WON the facts proven justify the reformation of the
deed in question.
HELD
1. NO
-Section 383.7 of the Code of Civil Procedure bars
parties to an action or proceeding against an executor
or administrator or other representative of a deceased
person upon a claim or demand against the estate of
such deceased person from testifying as to any matter
of fact occurring before the death of such deceased
person.
BUT it has generally been given a liberal construction
to promote justice, and it is held that it never was
intended to serve as a shield for fraud.
-Jones on Evidence: "The evidence of an adverse party
is absolutely excluded by an independent, affirmative
enactment making him incompetent as to transactions
or communications with a deceased or incompetent
person. These statutes, however, do not render the
adverse party incompetent to testify to fraudulent
transactions of the deceased, as the statutes are not
designed to shield wrongdoers but the courts compel
the adverse party to clearly establish the alleged
fraudulent acts before admitting such testimony."
A2010
-Tongco vs. Vianzon: "The object and purpose of this
statute is to guard against the temptation to give false
testimony in regard to the transaction in question on
the part of the surviving party. An equally important
rule is that the law was designed to aid in arriving at
the truth and was not designed to suppress the truth."
-A number of credible witnesses testified to facts which
conclusively showed that Carr's conduct was tainted
with fraud. Plaintiff did not take the witness stand until
after the existence of fraud on the part of Carr had
been established beyond a doubt and not by a mere
preponderance of evidence. In these circumstances, we
cannot hold that the trial court erred in not excluding
the plaintiff's testimony.
2. YES. Reformation will be given "where there is a
mistake on one side and fraud or unfair dealing on the
other."
-Counsel admits that the deed was left in escrow with
Moore. It is well settled that the condition upon which a
deed is delivered in escrow may be proved by parol
evidence and that ordinarily the statute of frauds has
no application to such an agreement, nor is it affected
by the rule of evidence, which prohibits a written
contract from being contradicted or varied by parol
evidence. It is also well established that an escrow
delivered without authority or obtained fraudulently
passes no title.
-That is what occurred here; Moore had no authority
whatever to deliver the deed in escrow to Carr before
the expiration of the time for redemption. It follows that
the certificates of title issued to Carr were of no legal
effect and that the suit for the rescission of the deed
and the cancellation of the corresponding certificates of
title would be in order (see the last two provisos in sec.
55 of Act No. 496).
-The evidence is conclusive that the plaintiff had no
clear conception of the contents of the deed. That he
was anxious to protect the rights of redemption held by
the parties who sold the land to him, is very obvious;
indeed, if he had failed to do so, he would have laid
himself open to an action for damages. But the deed
was written in the English language, with which the
plaintiff was unfamiliar, and he had to rely on the
statements of Moore as to the contents and effect of
the deed and was told that the document was
sufficient.
-Carr, on the other hand, knew the contents of the deed
and fully agreed to Moore's plan to place it in escrow
32
 Prof. V. A. Avena
until the expiration of the term for the repurchase or
redemption of the land. He, nevertheless, in violation of
his own agreement, harassed Moore, then a very sick
man, into giving him possession of the deed
prematurely. He took immediate advantage of that
circumstance and hastened to have the document
presented to the register of deeds for the issuance of
certificates of title. It is elementary that such conduct
constitutes fraud and was calculated to obtain an unfair
advantage over the plaintiff.
MENDEZONA V VIUDA DE GOITIA
March 11, 1930; VILLAMOR, J.
(lora)
FACTS
- Defendant Encarnacion C. Vda, de Goitia has been
duly appointed judicial administratrix of the estate of
her deceased husband Benigno Goitia
- Benigno Goitia was the representative and attorney-
in-fact of the plaintiffs in the joint-account partnership
known as the Tren de Aguadas, of which the plaintiff
Leonor Mendezona, widow of Juan Bautista Goitia, owns
180 shares worth P18,000, and the plaintiff Valentina
Izaguirre y Nazabal owns 72 shares worth P7,200
- Prior to 1915, Benigno Goitia, at that time the
manager of the co-partnership, collected the dividends
for the plaintiffs, which he remitted to them every year.
That the usual dividends which Benigno Goitia
forwarded to plaintiff Leonor Mendezona each year
were P540, and to plaintiff Valentina Izaguirre y
Nazabal, P216
- From 1915 until his death in August, 1926, Benigno
Goitia failed to remit the dividends
- Some time before his death, more particularly, in July,
1926, Benigno Goitia, who was no longer the manager
of the said business, receive as attorney-in-fact of both
plaintiff, the amount of P90 as dividend upon plaintiff
Leonor Mendezona's shares, and P36 upon Valentina
Izaguirre y Nazabal's stock
- During the period from 1915 to 1926, Benigno Goitia
collected and received certain sums as dividends and
profits upon the plaintiffs's stock in the Tren de
Aguadas in his capacity as representative and attorney-
in-fact for both of them, which he has neither remitted
nor accounted for to the said plaintiffs
Evidence
- Counsel for both plaintiffs filed their claims with the
committee of claims and appraisal of the estate of
Benigno Goitia, and, upon their disallowance, appealed
from the committee's decision by means of the
complaints in these two cases.
- The court below ordered the defendant, as judicial
administratrix of Benigno Goitia's estate to render a
judicial account of the intestate estate of the deceased
Benigno Goitia, to render an account of the amounts
collected by her aforesaid husband as attorney-in-fact
and representative of the plaintiffs in the copartnership
from 1915 to July, 1926, within thirty days from notice
of this decision
- Defendant, reiterating her exception to the court's
decision enjoining her to render accounts, manifested
that after a painstaking examination of the books of
account of the copartnership and several attempts to
obtain data from Ruperto Santos, the manager and
administrator thereof, she has found no more evidence
of any amount received by her late husband than a
book of accounts where she came upon an item of P90
for Leonor Mendezona, and another of P36 for Valentina
Izaguirre.
- The court ordered the defendant, as judicial
administratrix of the estate of the deceased Benigno
Goitia, to pay the plaintiff Leonor Mendezona the sum
of P13,140 with legal interest from the date of the filing
of the complaint, and to pay the plaintiff Valentina
Izaguirre P5,256 likewise with legal interest from the
date of the filing of the complaint, and moreover, to
pay the costs of both instances.
- The defendant appealed from this judgment.
-The appellees made depositions before the American
consul at Bilbao, Spain, in accordance with section 356
of the Code of Civil Procedure. Counsel for the
appellant was notified of the taking of these
depositions, and he did not suggest any other
interrogatory in addition to the questions of the
committee. When these depositions were read in court,
the defendant objected to their admission, invoking
section 383, No. 7, of the Code of Civil Procedure. Her
objection referred mainly to the following questions:
1. Did Mr. Benigno Goitia render you an account of your
partnership in the "Tren de Aguadas?" — Yes, until the
year 1914.
2. From the year 1915, did Mr. Benigno Goitia send you
any report or money on account of profits upon your
shares? — He sent me nothing, nor did he answer, my
letters.
A2010
3. Did you ever ask him to send you a statement of
your account — Yes, several times by letter, but I never
received an answer.
ISSUE
WON the appellees' depositions are admissible.
HELD
YES. The first of these questions tends to show the
relationship between the principals and their attorney-
in-fact Benigno Goitia up to 1914. Supposing it was
error to permit such a question, it would not be
reversible error, for that very relationship is proved by
the Exhibits . - As to the other two questions, it is to be
noted that the deponents deny having received from
the deceased Benigno Goitia any money on account of
profits on their shares, since 1915. We are of opinion
that the claimants' denial that a certain fact occurred
before the death of their attorney-in-fact Benigno
Agoitia does not come within the legal prohibitions
(section 383, No. 7, Code of Civil Procedure).
- The law prohibits a witness directly interested in a
claim against the estate of a decedent from testifying
upon a matter of fact which took place before the death
of the deceased. The underlying principle of this
prohibition is to protect the intestate estate from
fictitious claims. But this protection should not be
treated as an absolute bar or prohibition from the filing
of just claims against the decedent's estate.
- The facts in the case of Maxilom vs. Tabotabo differ
from those in the case at bar.
- Maxilom vs. Tabotabo: the plaintiff Maxilom liquidated
his accounts with the deceased Tabotabo during his
lifetime, with the result that there was a balance in his
favor and against Tabotabo of P312.37, Mexican
currency. The liquidation was signed by both Maxilom
and Tabotabo. In spite of this, some years later, or in
1906, Maxilom filed a claim against the estate of
Tabotabo for P1,062.37alleging that P750 which
included the 1899 liquidation had not really been
received, and that therefore instead of P312.37,
Mexican currency, that liquidation should have shown a
balance of P1,062.37 in favor of Maxilom. It is evident
that in view of the prohibition of section 383, paragraph
7, of the Code of Civil Procedure, Maxilom could not
testify in his own behalf against Tabotabo's estate, so
as to alter the balance of the liquidation made by and
between himself and the decedent.
33
 Prof. V. A. Avena
- But in the case before us there has been no such
liquidation between the plaintiffs and the deceased
Goitia. They testify, denying any such liquidation. To
apply to them the rule that "if death has sealed the lips
of one of the parties, the law seals those of the other,"
would be to exclude all possibility of a claim against the
testamentary estate. This was the legislator's intention.
- The plaintiffs-appellees did not testify to a fact which
took place before their representative's death, but on
the contrary denied that it had taken place at all, i.e.
they denied that a liquidation had been made or any
money remitted on account of their shares in the "Tren
de Aguadas" which is the ground of their claim. It was
incumbent upon the appellant to prove by proper
evidence that the affirmative proposition was true,
either by bringing into court the books which the
attorney-in-fact was in duty bound to keep, or by
introducing copies of the drafts kept by the banks
which drew them, as was the decedents's usual
practice according to Exhibit I, or by other similar
evidence.
- The appellant admits having found a book of accounts
kept by the decedent showing an item of P90 for the
account of Leonor Mendezona and another of P36 for
the account of Valentina Izaguirre, which agrees with
the statement of Ruperto Santos, who succeeded
Benigno Goitia in the administration of said partnership,
to the effect that the deceased attorney-in-fact had
collected the amounts due the plaintiffs as dividends on
their shares for the months of May and June, 1926, or
P90 for Leonor Mendezona, and P36 for Valentina
Izaguirre, amounts which had not been remitted by the
deceased to the plaintiffs.
Disposition Judgment affirmed
BABAO VS PEREZ
(mel)
Disqualification by Reason of Privileged Communication
PEOPLE V FAUSTO CARLOS
Ostrand; (Mar 17 ’25)
(mae m)
FACTS
Evidence
On March 3 1924 Dr. Sityar operated on Carlos’ wife
for appendicitis and other ailments. The wife was
confined until March 18, and was required to often
consult with the doctor afterwards. Carlos accompanied
his wife during consultations. On one visit Dr. Sityar
asked Carlos to buy medicine, which during his time
away Dr. Sityar outraged his wife. The wife told Carlos
after they left the clinic. Nevertheless, Carlos still
consulted with Dr. Sityar with his lung trouble after the
incident without revealing any special resentment.
Later Dr. Sityar through letter asked Carlos to
immediately settle the professional fees due him for
treating Carlos’ wife. Carlos went to the clinic several
times but wasn’t able to talk to Dr. Sityar until May 26.
The prosecution established through evidence that
Carlos stabbed Dr. Sityar twice with a fan-knife without
any preliminary quarrel, and inflicted a third wound
while in pursuit. Carlos escaped but surrendered
himself to the Constabulary the next evening.
The defense presented arguments for self-defense
which failed.
TC convicted Carlos of murder due to evident
premeditation, which only support was Exhibit L – the
wife’s letter to Carlos [dated two days before the crime]
which was seized by the police. In the letter, the wife
feared that Carlos contemplated resorting to physical
violence in dealing with Dr. Sityar.
ISSUE
I: Murder or homicide? [Is the letter admissible or is it
privileged communication and therefore inadmissible?]
HELD
SC: Homicide. Letter inadmissible – written by wife.
Might have been admissible:
- If wife testified at the trial and subject her testimony
to impeachment, but she was not put on the witness-
stand and the letter was therefore not offered for that
purpose.
- If Carlos, either by answer or otherwise, had
indicated his assent to the statements contained in the
letter, but he didn’t.
The letter therefore is pure hearsay and its admission
in evidence violates the constitutional right of the
defendant in a criminal case to be confronted with the
witness for the prosecution and have the opportunity to
examine them. In this respect there can be no
A2010
difference between an ordinary communication and one
originally privileged.
When admissible:
- Conversation (≠ Letter): The question is radically
different from that of the admissibility of
testimony of a third party as to a conversation
between a husband and wife overheard by the
witness. It is admissible because it relates to a
conversation in which both spouses took part,
and on the further ground that where the
defendant has the opportunity to answer a
statement made to him by his spouse and fails to
do so, his silence implies assent. This cannot apply
where the statement is contained in an unanswered
letter.
- Where a privileged communication from one
spouse to another comes into the hands of a
third party, whether legally or not, without
collusion and voluntary disclosure on the part of
either of the spouses, the privilege is thereby
extinguished and the communication, if
otherwise competent, becomes admissible.
- Wigmore: If they were obtained surreptiously
or otherwise without the addressee’s consent,
the privilege should cease.
Since Exhibit L is inadmissible, Carlos should be
convicted only with murder.
Regarding prosecution’s contention that the crime
was murder because it was committed with aleviosa
(because one of the wounds received by the deceased
showed a downward direction, indicating that the
deceased was sitting down when the wound was
inflicted), there’s no sufficient proof because the
direction of the wound would depend largely upon the
manner in which the knife was held.
DISSENT (Villamor): Carlos should have been convicted
of murder. An eyewitness testified that Dr. Sityar had
his arms lowered and was about to fall down when
Carlos stabbed him, which wound according to the
doctor-examiner could have caused Dr. Sityar’s death.
The case of US v. Baluyot states that “[e]ven though a
deadly attack may be begun under conditions not
exhibiting the feature of aleviosa, yet if the assault is
continued and the crime is consummated with
34
 Prof. V. A. Avena A2010
Evidence

aleviosa, such circumstance may be taken into

consideration as a qualifying factor in murder.”

US VS ANTIPOLO
(supra)

See page 23.

35