CHINA INSURANCE & SURETY COMPANY, INC., PLAINTIFF AND APPELLANT, VS. B.K. BERKENKOTTER, DEFENDANT AND APPELLANT.

This case is now before this Court on a petition for
reconstitution, the record of the case having been destroyed as a result of the
military operations for the liberation of the City of Manila. At the time of the
destruction of the record, the case was pending in the Court of Appeals upon
appeal by both parties from a decision of the Court of First Instance of
Manila.

In the proceeding for reconstitution conducted by the
commissioner appointed by this Court (the Court of Appeals not being then in
existence), the only portions of the record the parties were able to reconstruct
were the following:

“1. Petition dated October 27, 1944, filed by Atty. Antonio
Carrascoso, Jr., for the defendant-appellant in this case, wherein the
defendant-appellant seeks to consign to the Clerk of Court of Appeals the sum of
P23,489.35, in satisfaction of the judgment which had been rendered in the lower
court in favor of the plaintiff-appellant and prays for the withdrawal of his
appeal;

“2. Notice of consignation, dated October 26, 1944, signed by
Atty. Antonio Carrascoso, Jr., for and in behalf of the defendant-appellant,
sent to the China Insurance Surety Co., Inc.;

“3. Notice of the resolution of the Court of Appeals of
November 2, 1944, to the parties in this case;

“4. The pleading of plaintiff-appellee in this case, bearing
the following headings: (1) Opposition to the petition of defendant-appellant;
(2) Motion asking triple cost and damages against said defendant; and (3) Motion
of Reconsideration in case the said petition has been granted before this
opposition has been received by the Court of Appeals (this last item consisting
only of two pages, the third page thereof having been lost.)”

No copy of the pleadings, evidence, decision, and briefs was
available. The record could not, therefore, be fully or even substantially
reconstituted. But notwithstanding this state of affairs, plaintiff-appellant
asks that the case be declared reconstituted, and, on the theory that by
defendant-appellant’s offer of consignation contained in his petition of October
27, 1944, he should be deemed to have recognized the validity of the judgment
rendered against him in the lower court and, consequently, estopped from
prosecuting his appeal, plaintiff-appellant further prays to order
defendant-appellant to pay the amount of the judgment below.

Defendant-appellant objects to both of the above prayers and,
on his part, asks that the case be declared reconstituted “in so far only as it
refers to defendant’s petition of October 27, 1944,” and, once that is done, his
offer of consignation declared valid and his obligation to plaintiff fully paid
and discharged.

With nothing but papers relating to defendant-appellant’s
consignation of P23,489.35 in military notes with the clerk of the Court of
Appeals, it is obvious that the appeal can not be decided on the merits. Missing
are the pleadings, evidence and decision below and the briefs presented on
appeal. This Court is, therefore, not sufficiently informed about the issues of
fact and law involved to enable it to arrive at a correct decision of the case.
The petition to have the record of the case declared completely reconstituted
must, therefore, be denied.

This leaves the other question of whether or not the record may
be deemed reconstituted in so far only as it refers to defendant’s petition of
October 27, 1944, with the object in view of determining whether the
consignation made by the defendant-appellant was valid or not. On this point,
the reconstituted documents show that, while the consignation was really made
and the adverse party notified thereof, the same has neither been accepted by
the latter nor approved by the court, and in any event there is no clear proof
before us that the essentials of a valid consignation are here present,
specially the conformity of the proffered payment to the terms of the obligation
which is to be paid. It should be remarked in this connection that strict
conformity in that regard is required, for, as Manresa says, “* * * el acreedor
tan solo, y no el juez, puede autorizar la variacion que para los derechos de
aquel suponga la que se intente en el objeto, cuantia o forma de las
obligaciones.” (8 Manresa, 312.) Since the appealed decision is not before us
and there is no certain proof of the amount. and terms of the obligation which
defendant-appellant is required to discharge under the judgment, it is not
possible for this Court to pass upon the validity of the consignation in
question. Consequently, defendant-appellant’s suggestion to have the case
declared partially reconstituted for the specific purpose he has in view cannot
be entertained.

As to the question of whether or not defendant-appellant is now
estopped from prosecuting his appeal on the theory that his offer of
consignation amounts to a recognition of the validity of the judgment against
him, it appears that the consignation was made at a time (October 27, 1944) when
the Japanese military notes were already, to use counsel’s own phrase, “almost
worthless.” Rather than a recognition of the validity of the judgment appealed
from, the consignation made in this case may, pending its acceptance by the
adverse party or a court declaration that it was properly made (Art. 1180, Civil
Code), be regarded as a mere attempt at compromise without prejudice to the
prosecution of the appeal if no settlement is effected.

Our conclusion, therefore, is that, on the basis of the
documents presented, the record of this case can not be declared reconstituted
either fully, as plaintiff-appellant asks, or partially, as defendant-appellant
suggests, so that, in default of agreement to take the place of vital documents
essential to a correct determination of the case on appeal as contemplated in
section 60 of Act No. 3110, the proper remedy is for plaintiff-appellant to file
its action anew in accordance with section 30 of the same act.

Wherefore, the petition to have the record of the case declared
reconstituted either fully or partially and the petition to order
defendant-appellant to pay the amount of the judgment appealed from are hereby
denied.

Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon,
Briones, Tuason, and Montemayor, JJ., concur.