CORDOBA Y CONDE, PLAINTIFFS AND APPELLEES, VS. CASTLE BROTHERS, WOLF & SONS, AND SMITH, BELL & COMPANY, DEFENDANTS AND APPELLANTS.

On the 7th day of March, 1902, plaintiffs took delivery from the custom-house in the city of Manila a case of shoes containing eighteen pairs.  On the 24th day of December, 1902, plaintiffs  filed in the Court of First Instance a complaint  in which the firms of Castle Brothers, Wolf & Sons, and  Smith, Bell & Co. were made defendants, and in which the plaintiffs alleged that a  firm in New York City had shipped them a case containing sixty-nine pairs of  shoes; that this  case of shoes was  delivered  in the city  of San Francisco, California, in good  order, to  a steamship line of which  Castle Brothers,  Wolf & Sons  were the  Manila agents, and was  transshipped in Hongkong in bad  order and  with  a weight of 117 kilos to the steamer Loonsang, of which  Smith, Bell & Co, were the Manila agents; that the Loonsang arrived in Manila on December 26, 1901, and delivered the case of shoes, weighing only  70 kilos; that the case was  dispatched by  the  custom-house  on the  7th of March, 1902, lacking fifty-one  pairs of shoes; that the said  fifty-one pairs of shoes were worth $368.73  United States  currency.  To this complaint both of the defendants demurred and the demurrer was sustained.   The plaintiffs subsequently thereto, and on the 30th day of September, 1903, filed an amended complaint in  which Smith, Bell  & Co.,  as consignee of the steamer Loonsang, of  the  Indo-China  Navigation Company, was made the sole defendant. The  defendant  demurred to  this amended  complaint and the demurrer was sustained.  Thereupon, and  on  the 3d day  of December, 1903, plaintiffs filed a second amended complaint, making this  appellant the sole  defendant, the title  of the case  being  “Cordoba y  Conde,  plaintiffs, vs. the Indo-China  Navigation  Company, whose local agent  is Smith, Bell & Co., defendant.”

The  allegations in this amended complaint are essentially the same  as those of the original and first amended complaints.  On the  3d day of  December,  1903,  plaintiffs’ counsel mailed  a  copy  of this  second amended complaint to Pillsbury & Sutro, who  had appeared  as attorneys for  Castle  Brothers, Wolf &  Sons and Smith,  Bell & Co. in the earlier proceedings.   The court was at once notified that these attorneys were not retained  by the  Indo-China Navigation Company and had no authority to accept service upon behalf of the  said company.

No further proceedings were had in the cause until the 10th  day of March, 1908, when  a summons was issued, directed to the Indo-China Navigation Company,  which summons was served upon the appellant on  the following day.

Appellant duly appeared by counsel, and on the 1st day of April, 1908, filed its answer, consisting of a general denial and a plea of prescription.

After a hearing, at which certain evidence was presented by plaintiffs and none by defendants, judgment was  rendered  in accordance  with the prayer  of  the  complaint. To this judgment the defendant  excepted, and after  the appropriate motion  for a new trial  presented a bill  of exceptions and  instituted this appeal.

We think this case must be reversed upon the facts.   It was proven that the case  of shoes when delivered by  the customs authorities to the plaintiffs contained only eighteen pairs.   Plaintiffs alleged that the  case when shipped from New York contained sixty-nine pairs.  The only evidence offered  to prove that  the case did, in fact, contain sixty- nine pairs of shoes  when shipped is plaintiffs’  Exhibit  C, which  is a mere ex parte affidavit, and which  was not competent evidence against the defendant.  The defendant had no  opportunity to cross-examine the  maker  of  this affidavit upon the question  of the number of pairs of shoes contained in this case.

The plaintiffs further alleged that the  case of shoes  was delivered to the steamer Loonsang in Hongkong weighing 117 kilos.  No competent evidence was presented in support of this  allegation.   The only evidence presented on  this point  was that of  Loewenstein, whose   information was confessedly  based  upon hearsay,  and a  letter  signed  by Loewenstein which was also confessedly based upon hearsay.

The only  evidence in support of the allegation that the case of  shoes  weighed but 47 kilos when it was delivered to  the customs authorities  by the steamer  Loonsang and that it then contained but eighteen pairs, and that fifty-one pairs had been stolen  while the case  was in transit from; Hongkong to  Manila,  is to  be  found  in  Exhibits  A  and E-E, which are certificates of customs officers.  Our attention  has not  been called to  any provision of law making such certificates  competent  evidence  of the  facts which they recite.  Our attention has been called to the apparent alteration of  these  two  certificates.   Exhibit E-E  contains  the phrase  “caused by robbery in transit.”  The words “in transit” have obviously been inserted by some hand other than  that which wrote  the rest of the certificate.   In Exhibit A appears the phrase “evidently caused by  robbery in transit.”  The words “evidently” and  “in transit” have been inserted by some person other than the one who prepared this exhibit.   This  evidence is not sufficient to support  the conclusions of the trial court.

The judgment is, therefore, reversed, without any  special ruling as to  costs.  So ordered.

Arellano, C.  J.,  Mapa, Carson, and Moreland, JJ., concur.