40.

BORROMEO v CA
No. L-31342. April 7, 1976
TOPIC: Memorandum to Refresh Memory
DOCTRINE: Section 10 of Rule 132 of the Rules of Court applies only when it is shown beforehand that
there is need to refresh the memory of the witness. Besides, 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 had 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.

FACTS:

▪ Cross-petitions for the review of the per curiam resolution of the CA in CA-G.R. No. 30092-R,
Juan T. Borromeo etc. vs. Emmanuel B. Aznar, et al., dated November 19, 1969 which REVERSED
ENTIRELY ITS PREVIOUS DECISION of January 30, 1968 thereby ultimately holding that the
transactions in question are equitable mortgages instead of absolute sales of real properties and
granting the heirs of the deceased Simeon Rallos a period of one year from the finality of the
resolution within which to effect a redemption of said properties, without prejudice to the right
of the opposing party to foreclose the declared mortgages if no such redemption takes place
and the amounts stated in the documents are not fully paid, and ordering furthermore the
Aznars to pay said heirs P10,000 for and as attorney’s fees and the costs.

o As already stated, the main controversy here centers on the true nature of the three
documents, Exhibits A, B and C, which on their faces are unquestionably deeds of
absolute sale of the real properties therein described executed by the deceased Simeon
Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and his sister,
Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as
administrator of the estate of Simeon Rallos, alleged that these documents were in fact
equitable mortgages to secure loans granted to Rallos by Matias Aznar, deceased father
of Emmanuel and Alma, and prayed for their reformation. The trial court dismissed the
said complaint and on appeal, said dismissal was affirmed by the Court of Appeals in its
original decision of January 30, 1968 penned by Justice Ramon Nolasco and concurred in
by Presiding Justice Francisco B. Capistrano and Justice Antonio Cañizares.

▪ However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice
Capistrano who had by then been elevated to this Court was substituted by his successor
Presiding Justice Julio Villamor, this rather strong position taken by the appellate court was
completely reversed by itself.
▪ While the testimony of Crispina Rallos Alcantara may not be free from bias, she being the
daughter of the deceased, Simeon Rallos, the same should not, however, be totally rejected on
the ground of bias alone, considering that it appears to be clearly and sufficiently supported by
memoranda which, as already stated, are admissible in evidence as part of the res gestae
(Exhibits A-2, A-3, B-3 and C-5), and by the ledgers of the Philippine National Bank (Exhibits X
and Y).
▪ Besides, mere relationship of a witness to a party does not discredit his testimony in
court.Indeed, it appears to Us from the above ratiocination of the CA in its per curiam
resolution, considered together with the arguments adduced by it relative to the same matters
in its original decision, that had that court found no reason to admit and take into account said
 evidence, it would not have reversed its previous finding that the subject deeds are absolute
sales.

ISSUE: WON Sec 10 Rule 132 is applicable in this case?

HELD: NO. The thrust of the per curiam resolution is that the plaintiff Borromeo was able to prove that
the defendants Aznars “retained part of the purchase price” stipulated in the deeds in question and that
there was unusual inadequacy of said purchase price thereby justifying the use in this case of the
presumption created by Article 1602 of the Civil Code whenever said circumstances are shown
(Paragraphs 1 and 4 of said article).

According to the CA, these circumstances were proven through, among other evidence, the testimony of
Crispina Rallos Alcantara, the daughter of the deceased Simeon Rallos, who declared that she was
present on all occasions when the three transactions in dispute took place between her father and
Matias Aznar and that while thus listening to their conversations she took down notes of the various
amounts mentioned by them and the respective purposes thereof such as interest, attorney’s fees,
other obligations to be paid out of the money being borrowed by her father, etc., which notes were
identified at the trial as Exhibits A-2, A- 3, B-3 and C-5.

More specifically, the Court of Appeals held that because the testimony of the witness Alcantara was
corroborated by these notes, it should be believed, from which it can be gathered that it was only
because said notes were considered by it as inadmissible that in its original decision, said testimony and
notes were deemed to be without evidentiary value for being self-serving.

“While it is true,” says the appealed resolution, “that in our decision rendered in this case, we held that
the notations or memoranda of Cristina Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5 were
self-serving and unsatisfactory as evidence of the facts asserted, the same, however, as now correctly
contended by plaintiff-appellant in his motion for reconsideration, may be considered as constituting
part of the res gestae, and as such, are admissible in evidence to show the nature of the contracts in
question and the relation of the parties involved.

It is the ruling upholding the admissibility of said notes and memoranda as parts of the res gestae that
the Aznars contend to be a legal error committed by the CA.

We cannot see how the disputed notes and memoranda can be considered in any sense as part of the
res gestae as this matter is known in the law of evidence.