[No. 19189.

November 27, 1922]

FROILAN LOPEZ, plaintiff and appellant, vs. SALVADOR

V. DEL ROSARIO and BENITA QUIOGUE DE V. DEL
ROSARIO, defendants and appellants.

1. OBLIGATIONS; CONTRACTS FOR THE PAYMENT OF

A SUM OF MONEY; MEASURE OF DAMAGES FOR
DELAY; INTEREST.—In contracts for the payment of a
sum of money, the measure of damages for delay is limited
to the interest provided by law. The deprivation of an
opportunity for making money, which might have proved
beneficial or might have been ruinous, is of too uncertain
character to be weighed in the even balances of the law.

2. INSURANCE; POLICY EFFECTED BY BAILEE;

LIABILITY OF WAREHOUSEMAN TO OWNER OF
STORED GOODS.—A policy effected by a bailee and
covering by its terms his own property and property held
in trust, inures, in the event of a loss, equally and
proportionately to the benefit of all the owners of the
property insured. Even if one secured insurance covering
his own goods and goods stored with him, and even if the
owner of the stored goods did not request or know of the
insurance, and did not ratify it before the payment of the
loss, the warehouseman is liable to the owner of such
stored goods for his share.

3. ID.; NATURE OF CONTRACT; AGENCY.—Held: Under

the facts stated in the opinion, that defendant acted as
agent of plaintiff in taking out insurance on the contents
of the bodega. The agency can be deduced from the
warehouse receipts, the insurance policies, and the
circumstances surrounding the transaction.

4. ID.; DUTY OF OWNER OF GOODS TO SHARE IN THE

EXPENSES RESULTING FROM AMICABLE
ADJUSTMENT.—Where defendant acted as plaintiff's
agent for the insurance of goods stored with the
defendant, plaintiff cannot claim the benefits of the
agency without sharing in the expenses.
 5. EVIDENCE; ADJUSTMENTS OF Loss, ADMISSIBILITY.
—In a case of contributing policies, adjustments of loss
made by an expert or by a board of arbitrators may be
submitted to the court not as evidence of the facts stated
therein, or as obligatory, but for the purpose of assisting
the court in calculating the amount of liability.

APPEAL from a judgment of the Court of First Instance of

Manila. Del Rosario, J.
The facts are stated in the opinion of the court.
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Lopez vs. Del Rosario and Quiogue

Araneta & Zaragoza, for plaintiff-appellant.

Jose Espiritu and Gibbs, McDonough & Johnson for
defendants-appellants.

MALCOLM, J.:

Both parties to this action appeal f rom the judgment of

Judge Simplicio del Rosario of the Court of First Instance
of Manila awarding the plaintiff the sum of P88,495.21
with legal interest from May 13, 1921, without special
finding as to costs.
The many points pressed by contending counsel can be
best disposed of by, first, making a statement of the facts;
next, considering plaintiff's appeal; next, considering
defendant's appeal; and, lastly, rendering judgment.

STATEMENT OF THE FACTS

On and prior to June 6, 1920, Benita Quiogue de V. del

Rosario, whom we will hereafter call Mrs. Del Rosario, was
the owner of a bonded warehouse situated in the City of
Manila. She was engaged in the business of a warehouse
keeper, and stored copra and other merchandise in the said
building. Among the persons who had copra deposited in
the Del Rosario warehouse was Froilan Lopez, the holder of
fourteen warehouse receipts in his own name, and the
name of Elias T. Zamora. (Exhibits C, D, and R.) The
warehouse receipts, or negotiable warrants, or quedans (as
they are variously termed) of Lopez named a declared value
of P107,990.40 (Exhibits L-1 to L-13).
The warehouse receipts provided: (1) For insurance at
the rate of 1 per cent per month on the declared value; (2)
the company reserves to itself the right to raise and /or
lower the rates of storage and /or of insurance on giving one
calendar month's notice in writing; (3) this warrant carries
no insurance unless so noted on the face hereof, cost of
which is in addition to storage; (4) the time for which
storage and /or insurance is charged is thirty (30) days; (5)
payment for storage and /or insurance, etc.,

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100 PHILIPPINE REPORTS ANNOTATED

Lopez vs. Del Rosario and Quiogue

shall be made in advance, and /or within five (5) days after
presentation of bill. It is admitted that insurance was paid
by Lopez to May 18, 1920, but not thereafter.
Mrs. Del Rosario secured insurance on the warehouse
and its contents with the National Insurance Co., Inc., the
Commercial Union Insurance Company, the Alliance
Insurance Company, the South British Insurance Co., Ltd.,
and the British Traders Insurance Co., Ltd., in the amount
of P404,800. All the policies were in the name of Sra.
Benita Quiogue de V. del Rosario, with the exception of one
of the National Insurance Company, Inc., for P40,000, In
favor of the Compañía Coprera de Tayabas. (Exhibits N, O,
P, R-1 to R-4.)
The warehouse of Mrs. Del Rosario and its contents
were destroyed by fire on June 6, 1920. The warehouse was
a total loss, while of the copra stored therein, only an
amount equal to P49,985 was salvaged.
Following an unsuccessful attempt by Henry Hunter
Bayne, Fire Loss Adjuster, to effect a settlement between
the insurance companies and Mrs. Del Rosario, the latter,
on August 24, 1920, authorized Attorney F. C. Fisher to
negotiate with the various insurance companies. (Exhibit
A.) As a result, an agreement between Mrs. Del Rosario
and the insurance companies to submit the matter to
arbitration was executed in September, 1920. (Exhibit B.)
Mrs. Del Rosario laid claim before the arbitrators, Messrs.
Muir and Campbell, to P419,683.95, and the proceeds of
the salvage sale. The arbitrators in their report allowed
Mrs. Del Rosario P363,610, which, with the addition of the
money received from the salvaged copra amounting to
P49,985, and interest, made a total of P414,258, collected
by her from the companies. (Exhibits E, F, G, H, and Q.)
Mrs. Del Rosario seems to have satisfied all of the
persons who had copra stored in her warehouse, including
the stockholders in the Compañía Coprera de Tayabas
(whose stock she took over), with the exception of Froilan
Lopez, the plaintiff. Ineffectual attempts by Mrs. Del
Rosario to
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Lopez vs. Del Rosario and Quiogue

effect a compromise with Lopez first for P71,994, later

raised to P72,724, and finally reduced to P17,000, were
made. (Exhibits Y, 1, 3, 4, 6, 7, 8, 12.) But Lopez stubbornly
contended, or, at least, his attorney contended for him, that
he should receive not a centavo less than P88,595.43.
(Exhibits 4, 5.)

PLAINTIFF'S APPEAL

Plaintiff, by means of his first assignment of error, lays

claim to P88,595.43 in lieu of P88,495.21 allowed by the
trial court. The slight difference of P100.22 is asked for so
that plaintiff can participate in the interest money which
accrued on the amount received for the salvaged copra.
(Exhibits EE and FF.) Defendant makes no specific denial
of this claim. We think the additional sum should accrue to
the plaintiff.
Plaintiff's second and third assignments of error present
the point that the defendant has fraudulently—and even
criminally—refrained from paying the plaintiff, and that
the plaintiff should recover interest at the rate of 12 per
cent per annum. We fail to grasp plaintiff's point of view.
The defendant has not sought to elude her moral and legal
obligations. The controversy is merely one which
unfortunately all too often arises between litigious persons.
Plaintiff has exactly the rights of any litigant, equally
situated, and no more.
It has been the constant practice of the court to make
article 1108 of the Civil Code the basis for the calculation of
interest. Damages in the form of interest at the rate of 12
per cent, as claimed by the plaintiff, are too remote and
speculative to be allowed. The deprivation of an
opportunity for making money which might have proved
beneficial or might have been ruinous is of too uncertain
character to be weighed in the even balances of the law.
(Civil Code, art. 1108; Gonzales Quiros vs. Palanca
TanGuinlay [1906], 5 Phil., 675; Tin Fian vs. Tan [1909], 14
Phil., 126; Sun Life Insurance Co. of Canada vs. Rueda

102
102 PHILIPPINE REPORTS ANNOTATED
Lopez vs. Del Rosario and Quiogue

Hermanos & Co. and Delgado [1918], 37 Phil., 844;

Scævola, Código Civil, vol. 19, p. 576; 8 R. C. L., 463; 17 C.
J., 864.)

DEFENDANT'S APPEAL

Counsel for defendant have adroitly and ingeniously

attempted to avoid all liability. However, we remain
unimpressed by many of these arguments.
Much time has been spent by counsel for both parties in
discussing the question, of whether the defendant acted as
the agent of the plaintiff, in taking out insurance on the
contents of the bodega, or whether the defendant acted as a
reinsurer of the copra. Giving a natural expression to the
terms of the warehouse receipts, the first hypothesis is the
correct one. The agency can be deduced from the warehouse
receipts, the insurance policies, and the circumstances
surrounding the transaction.
After all, however, this is not so vitally important, for it
might well be—although we do not have to decide—that
under any aspect of the case, the defendant would be liable.
The law is that a policy effected by a bailee and covering by
its terms his own property and property held in trust,
inures, in the event of a loss, equally and proportionately to
the benefit of all the owners of the property insured. Even
if one secured insurance covering his own goods and goods
stored with him, and even if the owner of the stored goods
did not request or know of the insurance, and did not ratify
it before the payment of the loss, yet it has been held by a
reputable court that the warehouseman is liable to the
owner of such stored goods for his share. (Snow vs. Carr
[1878], 61 Ala., 363; 32 Am. Rep., 3; Broussard vs. South
Texas Rice Co. [1910], 103 Tex., 535; Ann, Cas., 1913-A,
142, and note; Home Insurance Co. of New York vs.
Baltimore Warehouse Co. [1876], 93 U. S'., 527.)
Moreover, it has not escaped our notice that in two
documents, one the agreement for arbitration, and the
other the statement of claim of Mrs. Del Rosario, against
the

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Lopez vs. Del Rosario and Quiogue
insurance companies, she acknowledged her responsibility
to the owners of the stored merchandise, against risk of
loss by fire. (Exhibits B and C-3.) The award of the
arbitrators covered not alone Mrs. Del Rosario's warehouse
but the products stored in the warehouse by Lopez and
others.
Plaintiff's rights to the insurance money have not been
forfeited by failure to pay the insurance provided for in the
warehouse receipts. A preponderance of the proof does not
demonstrate that the plaintiff ever ordered the cancellation
of his insurance with the defendant. Nor is it shown that
the plaintiff ever refused to pay the insurance when the
bills were presented to him, and that notice of an intention
to cancel the insurance was ever given the plaintiff.
The record of the proceedings before the board of
arbitrators, and its report and findings, were properly
taken into consideration by the trial court as a basis for the
determination of the amount due from the defendant to the
plaintiff. In a case of contributing policies, adjustments of
loss made by an expert or by a board of arbitrators may be
submitted to the court not as evidence of the f acts stated
therein, or as obligatory, but for the purpose of assisting
the court in calculating the amount of liability. (Home
Insurance Co. vs. Baltimore Warehouse Co., supra.)
Counsel for the defendant have dwelt at length on the
phraseology of the policies of the National Insurance
Company, Inc. Special emphasis has been laid upon one
policy (Exhibit 9) in the name of the Compañía Coprera de
Tayabas. In this connection it may be said that three
members of the court, including the writer riter of this
opinion, have been favorably impressed by this argument,
and would have preferred at least to eliminate the policy
for which premiums were paid, not by Mrs. Del Rosario on
behalf of Lopez and others, but by the Compañía Coprera
de Tayabas. A majority of the court, however, believe that
all the assets should be marshalled and that the plaintiff
should
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104 PHILIPPINE REPORTS ANNOTATED

Lopez vs. Del Rosario and Quiogue

receive the benefit accruing from the gross amount realized

from all the policies. Consequently, no deduction for this
claim can be made.
 The remaining contention of the defendant that the
plaintiff cannot claim the benefits of the agency without
sharing in the expenses, is well taken. Although the
plaintiff did not expressly authorize the agreement to
submit the matter to arbitration, yet on his own theory of
the case, Mrs. Del Rosario was acting as his agent in
securing insurance, while he benefits from the amicable
adjustment of the insurance claims. As no intimation is
made that the expenses were exorbitant, we necessarily
accept the statement of the same appearing in Exhibits Q
and 8.
Of the insurance money, totalling P414,258, P382,558
was for copra and the remainder for buildings, corn, etc.
The expenses for collecting the P414,258 totalled P33,600.
of P33,600 equals P31,028.85, the proportionate part of the
expenses with reference to the copra. Of the expenses
amounting, as we have said, to P31,028.85, plaintiff would
be liable for his proportionate share or of P31,028.85 or
P7,185.875.
The parties finally agree that the plaintiff at the time of
the fire was indebted to the defendant for storage and
insurance in the sum of P315.90.

JUDGMENT

In résumé, the result is to sustain plaintiff's first

assignment of error and to overrule his second and third
assignments of error, to overrule def endant's assignments
of error 1 2, 3, and 4 in toto and to accede to defendant's
assignments of error 5, 6, and 7 in part. If our mathematics
are correct, and the amounts can be figured in several
different ways, plaintiff is entitled to P88,595.43 minus
P7,185.88, his share of the expenses, minus P315.90, due
for insurance
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VOL. 44, NOVEMBER 27, 1922 105

Alburo vs. Mercado and Alburo

and storage, or approximately a net amount of P81,093.65,

with legal interest. This sum the defendant must disgorge.
Wherefore, judgment is modified and the plaintiff shall
have and recover from the defendants the sum of
P81,093.65, with interest at 6 per cent per annum from
May 13, 1921, until paid. Without special finding as to
costs in either instance, it is so ordered.
 Araullo, C. J., Street, Avanceña, Villamor, Ostrand,
Johns, and Romualdez, JJ., concur.
Johnson, J., did not take part.

Judgment modified.

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