LORETO IGUILDEZ, AS ADMINISTRATRIX OF THE ESTATE OF ABRAHAM WEILL, DECEASED, PLAINTIFF AND APPELLANT, VS. LEVY HERMANOS, DEFENDANT AND APPELLEE.

The plaintiff as administratrix of the estate of Abraham Weill
claims the sum of P155,437 from the defendant, alleging that Abraham Weill was
chief and one of the partners of La Estrella del Norte, a firm
established in this city; that after Abraham Weill’s death, La Estrella del
Norte was incorporated under the name of Levy Hermanos, Inc., the
new firm thus organized having been subrogated to all the assets and liabilities
of the former partnership; and that the late Abraham Weill, upon his death left
the amount of one hundred fifty-five thousand four hundred thirtyseven pesos
(P155,437), deposited with the defendant Levy Hermanos.

After denying the allegations of the complaint, the defendant
sets up as a defense: (1) That La Estrella del Norte was a foreign
partnership organized under the laws of the French Republic, and the late
Abraham Weill never had been a member of said partnership during the time when
the same was engaged in business in these Islands; (2) that the balance in favor
of Abraham Weill when the defendant was organized as a domestic corporation, and
of which he took charge, had been fully paid by the defendant.

In view of the allegations of the complaint and the answer and
of the evidence adduced at the hearing, the trial court rendered judgment
absolving the defendant from the complaint, with costs against the
plaintiff.

The plaintiff appealed from this judgment through the proper
bill of exceptions, and now alleges that the trial court erred: (1) In accepting
as good and true, the entries appearing in Exhibits 1, 2, 3, 4, 6, 7, 7a, and 8
of the complaint; (2) in admitting the said Exhibits 1, 2, 3, 4, 6, 7a, and 8;
(3) in holding that it has been proved that the Kilayco property in Exhibit A
belonged to Levy Hermanos and not to the deceased Abraham Weill; (4) in
finding that the sum claimed by the plaintiff has already been fully paid by the
defendant; (5) in absolving the defendant from the complaint and in ordering the
plaintiff to pay the costs.

For the proper understanding of the first and second errors
assigned by the appellant’s counsel, it must be understood that Exhibits 1, 2,
and 3 are the books of account of the commercial firm Levy Hermanos;
that Exhibit 4 is the ledger of Levy Hermanos Inc., opened on February
1, 1922; that Exhibit 6 is a copy of the entries in Exhibits 1, 2, and 3, duly
certified by the clerk of the Court of First Instance of Iloilo; that Exhibit 7
is one of the books of account of Levy Hermanos which was saved from
the fire; that Exhibit 7-A is an exact copy of the entry contained in Exhibit 7
regarding the participation of Abraham Weill on June 10, 1914, in favor of
Fernando Levy and Alfred Schwab.

The appellant’s contention that said exhibits were wrongly
admitted by the lower court, is untenable. Not only does it not appear in the
bill of exceptions that said commercial books were not kept in accordance with
the Code of Commerce, but it appears that the trial court, after examining them,
found that said books had been kept in conformity with the provision of the
aforesaid code, aside from the fact of having been admitted at the hearing by
counsel for the appellant. In the case of Tan Machan vs. Gan Aya de la Trinidad
(3 Phil., 684), it was held that: “Where the introduction in evidence of books
of account is objected to upon the ground that they are not kept in conformity
with the requirements of the Code of Commerce, the bill of exceptions must show
that such was the fact in order to make the exception available in the appellate
court.” In Garrido vs. Asencio (10 Phil., 691), it was held that: “Books of
account, although not kept in accordance with the provisions of the Code of
Commerce, if not objected to, are admissable in evidence, and, in any event,
they may be admitted under section 338 of the Code of Civil Procedure, as a
memorandum to refresh the memory of the witness. (Tan Machan vs. Gan Aya de la
Trinidad, 3 Phil., 684.)” In Cang Yui vs. Gardner and Tan Singco (34 Phil.,
376), the same rule was sustained and it was said that, at any rate, the account
books, even if they have not been kept in accordance with the provisions of the
Code of Commerce, may be admitted as evidence under section 338 of the Code of
Civil Procedure.

With regard to the correctness of the entries appearing in the
exhibits in question, it appears that the entries were regularly made in the
ordinary course of the defendant’s business in such a manner that even the
interest on Abraham Weill’s deposit is shown, and his share corresponding for
each year as manager of Levy Hermanos is credited to his account.

Moreover, Alfred Schwab, a witness for the plaintiff,
identified Exhibit I, and the trial judge having personally examined the
defendant’s original account books Exhibits 1, 2, 3 and 4, declares in his
decision that said books were kept in conformity with the provisions of the Code
of Commerce, not having discovered any indication of falsity in the entries.

Corpus Juris, vol. 22, pp. 867 and 868, reads:

“Proof of Correctness of Accounts.—In order to render
books of account admissible, there must be a showing that the party kept clear
and correct accounts, which showing must, it is generally held, be by the
testimony of third persons who have dealt with him. It has been held further
that the witness must be able to identify the books and to testify to
settlements made from the books and based upon an examination of the items
contained therein.

“Form and Regularity of Accounts—In
General.—The entries must appear to have been made in the regular course of
business and under such circumstances as to import trustworthiness, and the book
must be in such shape that it may be presumed to be the register of the daily
business transactions of the party offering it.”

With regard to Exhibit 8 suffice it to say that, being a public
document there is nothing to stand in the way of its admission as evidence. In
this exhibit the late Abraham Weill states, among other things, that the sole
owner of the mercantile establishment, La Estrella del Norte, doing
business under the name of Levy Hermanos is Mr. Rafael Levy, whose
general attorney-in-fact was the declarant. Such statement completely destroys
plaintiff’s allegation that the late Abraham Weill was the chief and one of the
partners of La Estrella del Norte.

Anent the ownership of the Kilayco property, which appears in
plaintiff’s Exhibit A and defendant’s Exhibit 1, it is true that in this exhibit
there is an entry in the current account of Abraham Weill, “expenses and account
house Kilayco of P18,914.54;” but Mr. Schwab, a witness for the plaintiff,
testified that this entry was erroneously made and that it was corrected by
another entry of P19,000 to the credit of his account instead and this testimony
was corroborated by the bookkeeper Fernando Ramirez. At all events it cannot be
reasonably inferred from the fact that the entry of P18,914.54 was debited to
Mr. Weill’s account, that the Kilayco house was his property, and less so
because in plaintiff’s Exhibit B, which is the contract of sale of the same
house by Levy Hermanos, Inc., in favor of the spouses Francisco Lizares
and Guillerma Alunan, it appears that said property is registered in the office
of the registrar of deeds of the Province of Iloilo under certificate of title
No. 3270. We presume that this certificate of title belongs to Levy
Hermanos, Inc., because otherwise the deed of sale, Exhibit B, could not
have been registered, as it was, in volume 14, folio 129 of the book of transfer
certificates as certificate No. 3367.

As has been said, the plaintiff claims the sum of P155,437 from
the defendant, alleging that this sum was left by Mr. Abraham Weill at his death
on deposit with the defendant. This aspect of the case was greatly simplified by
the following agreement entered into by the parties: (1) That according to the
ledger of 1914, it appears from page 68 of April 1, 1914 that there was a
balance of P69,794.21 in favor of Abraham Weill; this sum was in Abraham Weill’s
current account with Levy Hermanos but not with the defendant Levy
Hermanos, Inc.; and (2) that defendant Levy Hermanos, Inc., admits
that on January 31, 1922 there was a balance in favor of Abraham Weill of
P9,490.87 and that when Levy Hermanos, Inc. was organized on February
1, 1922, it took over this balance and so it is shown in its books.

In view of the facts agreed upon by both parties, and as
counsel for the appellant admits in its brief, the vouchers (?) Exhibits 5-A to
5-S presented by the defendant firm, of the withdrawal of funds made by the
deceased and his heirs, which covered the balance of P9,490.87 of which the
defendant took charge on February 1, 1922, and it appearing, on the other hand,
from Exhibit 6, that is, the current account of Abraham Weill with Levy
Hermanos, that the sum of P69,794.21 which the former had in his favor on
Aprilf 1, 1914 was reduced to P9,490.87 on January 31, 1922 by various drafts
sent to Abraham Weill and for other reasons described in detail in said Exhibit
6, it results that the sum claimed by the plaintiff has already been fully paid
by the defendant, as was held by the trial court. It is true that the vouchers
of the account shown in Exhibit 6 have not been presented at the trial; but this
omission has been explained to the satisfaction of the court, for such omission
was due to the loss of the vouchers by fire in Iloilo, which damaged the
establishment of La Estrella del Norte. Furthermore, the defendant,
according to the agreement of the parties, took charge of only the balance of
P9,490.87 in favor of Mr. Weill, which existed when Levy Hermanos,
Inc., was organised on February 1, 1922, when Mr. Weill died. And it is
unnecessary to add that Levy Hermanos, Inc., a domestic partnership
composed of various members is different from the firm Levy Hermanos,
whose sole owner was Rafael Levy.

The judgment appealed from, being in accordance with law, must
be, as it is hereby, affirmed, with costs against the appellant. So ordered.

Avanceña, C. J., Johnson, Ostrand, Johns, and
Romualdez, JJ., concur.