RULE 130 (RULES OF ADMISSIBILITY); ENTRIES IN THE COURSE OF BUSINESS

RULE 132 (PRESENTATION OF EVIDENCE); REFERENCE TO MEMORANDUM

Canque v. Court of Appeals

FACTS: Rosella D. Canque (Petitioner) entered into two contracts with private respondent
Socor Construction Corporation (Respondent) in relation to a contract which the former has
entered into with the Minister of Public Works and Highways (MPWH). Both contracts provided,
among others, that the respondent, agrees to perform and execute the Supply, Lay and Compact
Item 310 and Item 302, and the petitioner shall pay the respondent the volume of the supplied
Item based on the actual weight in Metric Tons delivered, laid and compacted and accepted by
the MPWH and the petitioner for the consideration thereinafter agreed. Respondent billed
petitioner for materials delivered and services rendered under the two contracts. However,
petitioner refused to pay the amount, claiming that respondent failed to submit the delivery
receipts showing the actual weight in metric tons of the items delivered and the acceptance
thereof by the government. Respondent sued petitioner for collection of sum of money. In her
answer, while petitioner initially disputed the correctness of the billing, she nonetheless denied
her having entered into contracts with respondent in her amended answer. During the trial,
respondent, as plaintiff, presented its vice-president, Sofia O. Sanchez, and Dolores Aday, its
bookkeeper, while Petitioner's evidence consisted of her lone testimony. The RTC ruled in favor
of the respondent, which the Court of Appeals affirmed. In the instant petition, Petitioner
contends that the presentation of the delivery receipts duly accepted by the then Ministry of
MPWH is required under the contracts and is a condition precedent for her payment of the
amount claimed by private respondent. Petitioner argues that the entries in private respondent's
Book of Collectible Accounts cannot take the place of the delivery receipts and that such entries
are mere hearsay and, thus, inadmissible in evidence. Petitioner further contendes that evidence
which is inadmissible for the purpose for which it was offered cannot be admitted for another
purpose.

ISSUE (1): Whether or not the entries in corporate books are admissible in evidence to prove
the delivery made by the respondent to the petitioner.

HELD (1): No. The admission in evidence of entries in corporate books requires the
satisfaction of the following conditions:
1. The person who made the entry must be dead, outside the country or unable to testify;
2. The entries were made at or near the time of the transactions to which they refer;
3. The entrant was in a position to know the facts stated in the entries;
 4. The entries were made in his professional capacity or in the performance of a duty,
whether legal, contractual, moral or religious; and
5. The entries were made in the ordinary or regular course of business or duty.

As petitioner points out, the business entries in question (Exh. K) do not meet the first and
third requisites. Dolores Aday, who made the entries, was presented by private respondent to
testify on the account of RDC Construction. It was in the course of her testimony that the entries
were presented and marked in evidence. There was, therefore, neither justification nor necessity
for the presentation of the entries as the person who made them was available to testify in court.

Moreover, Aday admitted that she had no personal knowledge of the facts constituting
the entry. She said she made the entries based on the bills given to her. But she has no knowledge
of the truth or falsity of the facts stated in the bills. The deliveries of the materials stated in the
bills were supervised by "an engineer for (such) functions." The person, therefore, who has
personal knowledge of the facts stated in the entries, i.e., that such deliveries were made in the
amounts and on the dates stated, was the company's project engineer. The entries made by Aday
show only that the billings had been submitted to her by the engineer and that she faithfully
recorded the amounts stared therein in the books of account. Whether or not the bills given to
Aday correctly reflected the deliveries made in the amounts and on the dates indicated was a fact
that could be established by the project engineer alone who, however, was not presented during
trial.

ISSUE (2): Whether or not the entries in the books of accounts, if disallowed as documentary
evidence, may instead be used as a memorandum.

HELD (2): Yes. It is nonetheless argued by private respondent that although the entries
cannot be considered an exception to the hearsay rule, they may be admitted under Rule 132, §10
20 of the Rules of Court which provides:

Sec. 10. When witness may refer to memorandum. — A witness may be allowed to refresh
his memory respecting a fact, by anything written by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any other time when the fact
was fresh in his memory and he knew that the same was correctly stated in the writing;
but in such case the writing must be produced and may be inspected by the adverse party,
who may, if he chooses, cross-examine the witness upon it, and may read it in evidence.
So, also, a witness may testify from such a writing, though he retain no recollection of the
particular facts, if he is able to swear that the writing correctly stated the transaction when
made; but such evidence must be received with caution.
 On the other hand, petitioner contends that evidence which is inadmissible for the
purpose for which it was offered cannot be admitted for another purpose. Xxx It should be noted,
however, that [the entries are] not really being presented for another purpose. Private
respondent's counsel offered [them] for the purpose of showing the amount of petitioner's
indebtedness.

This is also the purpose for which its admission is sought as a memorandum to refresh
the memory of Dolores Aday as a witness. In other words, it is the nature of the evidence that is
changed, not the purpose for which it is offered. Be that as it may, considered as a memorandum,
[the entries do] not itself constitute evidence. As explained in Borromeo v. Court of Appeals:

Under the above provision (Rule 132, §10), the memorandum used to refresh the memory
of the witness does not constitute evidence, and may not be admitted as such, for the simple
reason that the witness has just the same to testify on the basis of refreshed memory. In other
words, where the witness has testified independently of or after his testimony has been refreshed
by a memorandum of the events in dispute, such memorandum is not admissible as corroborative
evidence. It is self-evident that a witness may not be corroborated by any written statement
prepared wholly by him. He cannot be more credible just because he supports his open-court
declaration with written statements of the same facts even if he did prepare them during the
occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What
is more, even where this requirement has been satisfied, the express injunction of the rule itself is
that such evidence must be received with caution, if only because it is not very difficult to
conceive and fabricate evidence of this nature. This is doubly true when the witness stands to
gain materially or otherwise from the admission of such evidence . . . .

As the entries in question were not made based on personal knowledge, they could only
corroborate Dolores Aday's testimony that she made the entries as she received the bills.