TOMASA OSORIO, PLAINTIFF AND APPELLANT, VS. ANGELA MONTENEGRO VIUDA DE PAPA, DEFENDANT AND APPELLEE.

From
an adverse decision rendered by the lower court in civil case No. 44109
of the Court of First Instance of Manila, plaintiff appealed and, in
this instance, contends that the court committed the following errors:

“I.
The lower court erred in not holding that the PAGARE, the instrument
Exhibit M is supported by real, good, sufficient and legitimate
consideration.

“II. The lower court erred in not holding
that the total loan P63,764 stated in Exhibit M has not yet been paid
wholly or in part.

“III. The lower court erred in not
requiring the defendant to pay to the plaintiff the sum of Sixty-Three
Thousand Seven Hundred and Sixty-Four Pesos (P63,764) the amount
mentioned in the PAGARE Exhibit M, plus the interest thereon at the
legal rate computed from the time of the filing of the complaint until
full payment is made.”

The questions raised
by appellant may be summed up in the following manner: Did appellee
obtain from appellant the loan of P63,764 to which Exhibit M refers?

Exhibit M is of the following tenor:

“I
have received from Miss Tomasa Osorio the sum of Sixty-Three Thousand
Seven Hundred Sixty-Four Pesos (P63,764) as loan, without any interest,
to be invested in the construction of my house at 311 Aragon Street,
Manila, giving the land and house belonging to me as guarantee for said
sum.

“In witness whereof, I sign in Manila this tenth day of December, 1923.

	(Sgd.) “ANGELA MONTENEGRO DE PAPA
	“Witnesses:
		__________________
		__________________ ”

It
must be first of all noted that although there are lines for the
signatures of the witnesses to its execution, no one signed thereon.
The same remain blank. Nevertheless, appellee does not deny having
subscribed the promissory note in question, but alleges that she signed
it “without any just, real or legal consideration”; that she did not
receive a single cent of the amount set forth therein; and that
appellant herself had prepared the note for the sole purpose of helping
her (appellee) somehow to protect her property in case a suit
concerning the ownership of the house at 811 Aragon Street, Manila with
which she seemed to be then threatened, should arise between her and
her stepdaughter.

Appellant and appellee had been very good
friends, had been quite intimate and helped each other with loans to
meet individual needs. The only tangible proof submitted at the trial
by the appellant to show the existence of the alleged loan, consists in
Exhibit M. As a matter of fact, she testified that she delivered the
aforesaid sum of P63,764 to appellee not one time but on several and
distinct occasions in smaller sums as follows: P4,000 on December 5,
1916; P7,000 on the 20th of the same month and year; P2,612.50 on
February 8, 1918; P15,000 on September 17, 1919; P1,500 on December 11
of the same month and year; P15,000 and P5,000 on March 29, and August
3, 1920, respectively; P2,000 on April 21, 1921; P150,P250 and P400 on
April 29, May 1, and August 9, 1922, respectively; P1,000 on July 16,
1923; P3,500 and P1,000 on December 11 and 20, 1920, respectively; and
P5,000 worth of materials obtained from Ynchausti & Co. Exhibit G,
however, which is a loose sheet of paper with which she would
corroborate her testimony, saying that she entered therein the various
sums she had delivered to the appellee each time that they were
obtained from her, is without weight It does not prove anything and
only serves to discredit her, as the lower court observed in its
decision in the following terms:

“* * * The
book or memorandum Exhibit G must be at least nineteen years old, said
document being the same memorandum in which she entered the first loan
of P4,000 which she made in favor of defendant on December 5, 1916. The
memorandum contains fourteen entries: the first written on December 5,
1916, the last in the year 1923. In spite of such a long interval
between the first and the last entry, no difference can be noted in the
document either in the pulse or handwriting of the person who made the
same, or in the handwriting instrument. The same pulse, or pressure of
the hand and the same writing in pencil may be seen from the first to
the last entry. That a person who keeps a book or writes regularly in a
document for eight long years would be able to preserve the same pencil
and be ever in the same frame of mind, would be too much of an
accident. * * *” We would add to these observations that it is
illogical that the loans which, according to appellant, she made to
appellee on December 11 and 20, 1920 should be entered in the said
sheet Exhibit G after the alleged loan of P1,000 made on July 16, 1923.

Besides Exhibit G, appellant presented various blank stubs of some of
her old checks, saying that the same were those she had issued to the
appellee for the purpose of granting the loan set forth in said
exhibit; but there appears in other stubs which she also presented,
like Exhibits A to A-5, B to 6-3 and C to C-2, the great care which she
took to note down the names of the persons to whom she had issued the
checks of which said exhibits are the stubs. It is certainly strange,
quite unusual and unexplainable that appellant, in issuing her checks
to cover the alleged loans which she made to appellee, did not act or
conduct herself in the same manner she did with regard to the
transactions to which Exhibits A to A-5, B to B-3 and C to C-2 refer.
While she entered the name of the appellee on the stubs of the checks
for such relatively small sums as P1,000, P150 and P250 which she gave
to the appellee by that means, she did not do so when she delivered to
the latter such sums as those set forth in Exhibit G, namely, P4,000,
P7,000, P15,000, P3,500, P5,351.50, etc. If to this is added the fact
that, according to Exhibits 1 to 12 of appellee, it is the appellant
who owes the former the sum of P3,850 which is precisely the amount to
which she had been condemned by judgment of the lower court on
appellee’s counterclaim, from which she did not appeal or of which she
did not complain in her brief, the only conclusion which may be arrived
at is that Exhibit M was signed by appellee by agreement between her
and the appellant for no purpose other than to help the appellee save
her property in case there should be a suit between her and her
stepdaughter. That such was the case may be gleaned from Exhibits 1 to
12 of appellee which, with the exception of Exhibit 6, show that it was
said appellee who, on the request of appellant, lent the latter the
sums set forth in said documents which bear dates much later than the
execution of the supposed promissory note Exhibit M.

If it
were true that appellee owed appellant the P63,764 which she has been
claiming and the appellee had not paid anything on their account from
the date of the aforesaid document, instead of asking her in the
aforementioned Exhibits 1 to 12, with the exception of Exhibit 6, that
she (appellee) lend the amounts therein stated, should have demanded
that she be paid, if not the whole, at least a part of the supposed
loan.

In view of the foregoing and of the fact that
appellant’s appeal is without merit, the judgment of the lower court is
hereby affirmed, with costs against the appellant. So ordered.

Avanceña, C. J., Villa-Real, Imperial, and Concepcion, JJ., concur.