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THIRD DIVISION
[G.R. No. 118509. March 29, 1996]
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facilitate [the] sale of the trust property, the Trustee may engage the services
of real estate broker or brokers, under such terms and conditions which the
Trustee may deem proper, to sell the Trust property or any lot or parcel
thereof.
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Gentlemen:
This will serve as your authority to sell on an as is where is basis the property
located at Pasig Blvd., Bagong Ilog, Pasig, Metro Manila, under the following details
and basic terms and conditions:
TCT No. :
Area :
Price :
Terms :
Cash
Brokers Commission :
Others :
2%
This authority which is good for thirty (30) days only from date hereof is nonexclusive and on a first come first-serve basis.
Very truly yours,
BANK OF THE PHILIPPINE ISLANDS
as trustee of
Philippine Remnants Co., Inc.
(Sgd.)
(Sgd.)
FERNANDO J. SISON,
Assistant Vice-President
Exhibit G is petitioners letter dated July 22, 1988 reiterating its offer to
buy the subject property at P1,000/sq. m. but now on cash basis.
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(2) Those that do not comply with the Statute of Frauds as set forth in this number. In
the following cases an agreement hereafter made shall be unenforceable by action,
unless the same, or some note or memorandum, thereof, be in writing, and subscribed
by the party charged, or by his agent; evidence, therefore, of the agreement cannot be
received without the writing, or a secondary evidence of its contents:
xxx
xxx
xxx
(e) An agreement for the leasing for a long period than one year, or for the sale of real
property or of an interest therein.
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xxx.
xxx. The requirement that the notes or memoranda be subscribed by BPI or its
agents, as the party charged, is very vital for the strict compliance with the avowed
purpose of the Statute of Frauds which is to prevent fraud and perjury in the
enforcement of obligations depending for their evidence on the unassisted memory of
witnesses by requiring certain enumerated contracts and transactions to be evidenced
by a writing signed by the party to be charged (Asia Production Co., Inc. vs.
Pano, 205 SCRA 458). It cannot be gainsaid that a shrewd person could easily
concoct a story in his letters addressed to the other party and present the letters to the
court as notes to prove the existence of a perfected oral contract of sale when in truth
there is none.
In adherence to the provisions of the Statute of Frauds, the examination and
evaluation of the notes or memoranda adduced by the appellee was confined and
limited to within the four corners of the documents. To go beyond what appears on
the face of the documents constituting the notes or memoranda, stretching their import
beyond what is written in black and white, would certainly be uncalled for, if not
violative of the Statute of Frauds and opening the doors to fraud, the very evil sought
to be avoided by the statute. In fine, considering that the documents adduced by the
appellee do not embody the essentials of the contract of sale aside from not having
been subscribed by the party charged or its agent, the transaction involved definitely
falls within the ambit of the Statute of Frauds.
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which they did, under the circumstances was to preface the cross-examination
with objection. Thus:
ATTY. VARGAS:
Before I proceed with the cross-examination of the witness, your Honor, may we
object to the particular portion of the affidavit which attempt to prove the existence of
a verbal contract to sell more specifically the answers contained in page 3, Par. 1, the
whole of the answer.
x x x
xxx
x x x.
COURT:
Objection overruled.
Atty. VARGAS.
Your Honor, what has been denied by the Court was the motion for preliminary
hearing on affirmative defenses. The statement made by the witness to prove that there
was a verbal contract to sell is inadmissible in evidence in this case because an
agreement must be in writing.
COURT:
Go ahead, that has been already overruled.
ATTY. VARGAS:
So may we reiterate our objection with regards to all other portions of the affidavit
which deal on the verbal contract. (TSN, Feb. 28, 1989, pp. 3-5; Italics supplied.)
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ATTY. CORNAGO:
Before we proceed, we would like to make of record our continuing objection insofar
as questions and answers propounded to Pedro Revilla dated February 27, 1989, in so
far as questions would illicit (sic) answers which would be violative of the best
evidence rule in relation to Art. 1403. I refer to questions Nos. 8, 13, 16 and 19 of the
affidavit of this witness which is considered as his direct testimony. (T.S.N., June 29,
1990, p. 2)
ATTY. CORNAGO:
May we make of record our continued objection on the testimony which is violative of
the best evidence rule in relation to Art. 1403 as contained in the affidavit particularly
questions Nos. 12, 14, 19 and 20 of the affidavit of Alfonso Lim executed on February
24, 1989 x x x. (T.S.N., June 28, 1990, p. 8).
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Counsels should not be blamed and, worst, penalized for taking the path of
prudence by choosing to cross-examine the witnesses instead of keeping
mum and letting the inadmissible testimony in affidavit form pass without
challenge. We thus quote with approval the observation of public respondent
Court of Appeals on this point:
As a logical consequence of the above findings, it follows that the court a quo erred
in allowing the appellee to introduce parol evidence to prove the existence of a
perfected contract of sale over and above the objection of the counsel for the
defendant-appellant. The records show that the court a quo allowed the direct
testimony of the witnesses to be in affidavit form subject to cross-examination by the
opposing counsel. If the purpose thereof was to prevent the opposing counsel from
objecting timely to the direct testimony, the scheme failed for as early as the first
hearing of the case on February 28, 1989 during the presentation of the testimony in
affidavit form of Pedro Revilla, Jr., plaintiff-appellees first witness, the presentation
of such testimony was already objected to as inadmissible.
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[Italics supplied.]
WHEREFORE, in view of the foregoing premises, the Court hereby
GRANTS the motion for reconsideration, and SETS ASIDE its December 1,
1995 decision. Accordingly, the petition is DENIED and the Court of Appeals
decision dated August 12, 1994, appealed from is AFFIRMED in toto.
SO ORDERED