INTERNATIONAL BANKING CORPORATION, PLAINTIFF AND APPELLEE, VS. GEORGE A. YARED, DEFENDANT AND APPELLANT.

This is an appeal taken by the defendant George A. Yared from the
judgment rendered by the Court of First Instance of Cebu, the
dispositive part of which reads as follows:

“Let
judgment be entered condemning and ordering the defendant to pay to the
plaintiff the said amount of P7,653.55 with interest thereon from the
date of the filing of the complaint until paid, and to pay the costs of
this action. So ordered.”

In support of his appeal the appellant assigns the following alleged errors as committed by the court a quo in its decision, to wit:

“1.
The court erred in not giving full credit to the testimony of the
appellant, who was presented as witness for the plaintiff entity, in so
far as it establishes conclusively the fact that the amount claimed in
the complaint had already been fully paid and liquidated by means of a
compromise entered into by the parties.

“2. The court
likewise erred in not holding that the absolute and complete silence of
the plaintiff entity during eight or nine years from the time the
appellant made the last payment to the filing of the complaint,
supports the defense set up by the appellant to the effect that the
obligation was totally extinguished with the said last payment and that
the appellee was satisfied with having been completely and definitely
paid.

“3. The court likewise erred in not holding that the
appellee was in estoppel by laches in consequence of his omission and
silence during the said eight or nine years without requiring the
appellant even once to pay whatever balance there remained unpaid by
him.

“4. Lastly, the court erred in rendering judgment against the appellant and in denying his motion for a new trial.”

The following undisputed facts have been established during the trial:

On October 5, 1920, the firm Oriental American Traders, Inc., sold on
credit and delivered goods and merchandise to the defendant in Manila,
the total value of which amounted to P12,294.25 (Exhibits A and B).
Between the aforesaid date of October 5, 1920, and April 4, 1921, the
defendant had been making payments on account amounting to P2,500 and
had returned goods valued at P1,140.80 to the said firm Oriental
American Traders, Inc., thereby leaving an unpaid balance of P8,653.55.
Later, the said firm Oriental American Traders, Inc., assigned the
aforesaid credit, for cause, to the herein plaintiff International
Banking Corporation (Exhibits A and B, reverse).

On June 4,
1921 the defendant-appellant George A. Yared paid on account the sum of
P500 to the plaintiff-appellee and on July 8, 1921, he made another
payment of P500 thereby leaving a balance of P7,653.55 in favor of the
latter, which sum still remains unpaid.

The first question
to decide in this appeal is that raised in the first assignment of
error consisting in whether or not the testimony of the defendant, who,
having been utilized by the plaintiff entity as its witness, testified
that the amount claimed in the complaint had already been fully paid
and liquidated by means of a compromise entered into by the parties, is
conclusive as against the plaintiff.

Jones, in his Commentaries on Evidence, 2d ed., vol. 6, sec. 2426, states the rule on this point as follows:

“The
question has often arisen whether one party may call the other as a
witness and still be permitted to impeach him by proving his former
contradictory statements. In some jurisdictions the general rule is
held to apply and the right to impeach is denied. But under the
practice which now quite generally prevails a party may be called by
his adversary as an adverse party under statutes, and these generally
provide that the party calling the witness shall not be bound. Many of
the statutes declare that the testimony may be rebutted by other
testimony as if taken in his own behalf. It is held to be the meaning
of these statutes that the party thus called is not called as the
witness of the other party but in order to elicit from him material
facts by cross-examination as if he had already been examined on his
own behalf. * * *”

We do not see any moral, juridical or social reason against the adoption of the above rules in this jurisdiction.

In the case of Tan Chico vs. Concepcion and Asia Banking Corporation (43 Phil., 141, 148), this court held the following:

“That
the petitioner may be required to give his testimony in the court below
by deposition under subsection 1 of the section quoted (355 of Act No.
190) is obvious and the question as to whether or not the deponent is
available as a witness at the trial of the case appears to be
immaterial in relation to depositions under that subsection. While
classified in the code as the taking of a deposition, the proceeding
is, in reality, analogous to a Bill of Discovery in Chancery and its
purpose seems to be precisely to authorize such ‘fishing expeditions’
as that complained of in the petition. * * *”

If a party litigant may be required to give his testimony by
deposition, there is no reason why he may not be required to testify as
a witness of the adverse party to discover certain pertinent and
material facts in a suit, of which he has knowledge and which may shed
some light on the controversy pending decision. Unless he believes in
the maxim fiat justitia ruat coelum (let right be done though
the heavens should fall), it would be difficult, if not impossible, for
him, as an adverse party, to resist the impulse of self-preservation
and may fail to tell the truth regarding that which might be
prejudicial to his cause. If a litigant, who finds himself compelled to
resort to such recourse, were not permitted to impugn the veracity of
his adversary, he would find himself helpless to enforce his rights and
to obtain justice before the courts, which would be unjust. It is,
therefore, in accordance with reason and the principles of social
justice, that a litigant, who finds it necessary to avail himself of
the testimony of his adversary in order to prove his rights, be
permitted to impugn such testimony when it fails to state the truth.

The second question to decide is whether or not the plaintiff entity,
by reason of alleged negligence and abandonment, is estopped from
claiming payment of its credit after the lapse of more than eight years
from the time the defendant-appellant made the last payment on account.

The law of equity bars a claimant from presenting his claim when, by
reason of abandonment and negligence, he has failed to enforce his
right for a long time, and the doctrines on this matter are summarized
in Corpus Juris, vol. 21, p. 221, as follows:

“Mere delay.—In
some cases long lapse of time has been held sufficient of itself to
prevent relief. But mere delay in asserting a right does not ipso facto
bar its enforcement in equity, by the great weight of authority, unless
the case is barred by the statute of limitations. * * *”

The case under consideration is not one of equity but of positive law
for which a period within which the claim may be presented is provided.
Inasmuch as the claim is based on an instrument in writing, section 43
of the Code of Civil Procedure fixes the period of ten years within
which the corresponding action for the enforcement thereof may be
brought. In view of the fact that the statutory period has not yet
elapsed, the action has not prescribed.

In view of the
foregoing considerations, we are of the opinion and so hold: (1) that a
litigant, who finds himself compelled to present an adversary as his
witness in a case, is not bound by the latter’s testimony against him
and may impugn the veracity thereof by means of evidence to the
contrary, and (2) that the law of equity known as “estoppel by laches”
which bars a claimant from presenting his claim when, by reason of
abandonment and negligence, he allowed a long time to elapse without
presenting the same, is not applicable in this case on the ground that
the period of time, within which an action based upon an instrument in
writing may be brought, is fixed by law, which period has not yet
elapsed.

Wherefore, there being no error in the judgment appealed from, it is hereby affirmed in toto, with the costs against the appellant. So ordered.

Avanceña, C. J., Malcolm, Hull, and Imperial, JJ., concur.