MARIANO UY CHACO SONS & CO., PLAINTIFF AND APPELLEE, VS. THE ADMIRAL LINE, DEFENDANT AND APPELLANT.

MALCOLM, J.:

The plaintiff, Mariano Uy Chaco Sons & Co., alleges as a cause of action,
that upon arrival of the S. S. Satsuma at the port of Manila on June
22, 1920, there were short-delivered one case of varnish and paint remover and
fifty bales of oakum, for the conversion of which, defendant is liable. The
defendant, the Admiral Line, relies on the defense in its second amended answer
that the merchandise had been delayed, had been found, and delivery thereof had
been tendered and rejected. Judgment was for plaintiff for the value of the case
of varnish and paint remover, P22.80, for the value of the fifty bales of oakum,
P700, for the freight, P195.50, and for the insurance, P18, or a total of
P936.30, with legal interest and costs.

It is defendant’s contention on appeal that plaintiff was in duty bound to
have accepted the goods when tendered, as the plaintiff, not the defendant, was
the owner of the goods and as there was no conversion by defendant. To this,
plaintiff replies that it was justified, following such a long delay in
delivery, in refusing the tender of the merchandise so tardily made.

Defendant relies on the general rule that mere delay in the delivery of goods
by a common carrier, no matter how long continued, is not a conversion thereof,
but is only a breach of the contract of carriage. Therefore, where a carrier
fails to deliver goods within a reasonable time, although he thereby makes
himself liable for the damages incurred by reason of the delay, the consignee
cannot refuse to accept the goods from him and recover their value, but is
compelled to receive them. The most usual element of damages for a carrier’s
negligent delay in delivering the goods of the consignee is the difference
between the market value of the goods at the time when they should have been
delivered, and the time when they were delivered, to which may be added
reasonable expenses caused by the delay; but if there has been a conversion of
the goods by the carrier, and the consignee has not thereafter accepted them, he
is entitled to recover the value of the goods at the time they should have been
delivered to him. (10 C. J., pp. 283, 307; 4 R. C. L., pp. 737, 745, 931;
Carver’s Carriage by Sea, sees. 711-727; 2 Hutchinson on Carriers, sec. 651;
Baltimore & Ohio Railroad Co. vs. O’Donnell [1893], 49 O. St., 489;
21 L. R. A., 117; Chesapeake & Ohio Railway Co. vs. Saulsberry
[1907], 12 L. R. A., [N. SJ, 431.)

That is sound doctrine. It should be applied to the multiform transactions
coming before the courts. But our heads should not be so lost in the clouds of
abstract theory, even if charmingly advanced by learned counsel, as to cause us
to lose sight of the necessity of keeping our feet firmly planted on the mundane
earth of actual fact.

The relevant data follows: The merchandise should have been landed on June
22, 1920. Not having been delivered either on that day or any subsequent day
before May 21, 1921, and all efforts to secure satisfaction from the carrier
having failed, the complaint was presented on the date last mentioned. It was
amended on July 12, 1921. Answer in the form of a general denial was interposed
by the defendant on August 11, 1921. The first amended answer was filed on
February 18, 1922. Formal tender of the goods was made by the defendant on
October 7, 1922. Efforts at compromise having failed, plaintiff moved on April
27, 1923, for the assignment of the case for hearing. On August 14, 1923,
defendant offered its second amended answer in which the claim now advanced was
first announced, saying “That since the institution of this action, etc.” One
week later, on August 21, 1923, the trial commenced.

The interval which elapsed between the date when the merchandise should have
been delivered and the presentation of the complaint was approximately eleven
months. The delay which ensued between the date when the merchandise should have
been delivered and the date when it was finally tendered was close to two years
and four months. The time which passed between the date when the merchandise
should have been delivered and the date when the defense of tender was set up,
was over three years, and this particular line of defense was not announced
until shortly before the trial.

With the facts to the forefront, certain pertinent interrogatories may be
propounded. Accepting the general principles of carriers, damages, and
conversion, are there not exceptions to these broad rules? Is there not some
limit to the time which the consignee must wait for the delivery of his goods
before he can justly assume conversion of them to have taken place and sue for
the recovery of their value? Where the goods have not been landed with other
goods as expected, and where after long delay they are still undelivered, cannot
the consignee bring suit to recoup himself for the loss, without having to wait
for a period of time which might extend to eternity, before asking for
redress?

No case coming either from the local forum or from foreign jurisdictions
which exactly fits the facts has been found. (But Behn, Meyer & Co.
vs. Banco Espanol-Filipino [1908], 11 Phil., 253, and Yangco
vs. Meerkamp & Company, R. G. No. 15498,^[1] can be noted.) However, we invite attention
to the following:

Volume 10, Corpus Juris, at page 272, is authority for this: “* * * A demand
and a refusal to deliver is sometimes essential to show a conversion. Even after
demand, if the goods are tendered before suit brought, the consignee
cannot refuse to receive the goods and sue for conversion, his sole remedy being
an action for damages resulting from the delay.” Hutchinsoa’s Treatise on the
Law of Carriers (third edition, vol. 2, p. 717) contains this: “Though the
carrier may delay ever so long, the owner cannot charge him with a conversion,
or for value of the goods, if they are safely kept, unjess they have been
demanded of the carrier and their delivery refused, * * * ” relying on Hamilton
vs. Chicago, Milwaukee & St. Paul Railway Company ([1897], 103
Iowa, 325). Following the lines of the note to the text, we find this: ” Where
property in the hands of a common carrier is not delivered within a reasonable
time after it has reached its destination, the carrier, in the absence of any 1
Promulgated September 7, 1920, not reported. legal exemption and after demand
has been made and delivery refused, is liable for a conversion of the property.
The consignee, under such circumstances, may elect to waive all title to the
property and sue for the conversion, and after he has done so, a subsequent
tender by the carrier will not be available for it as a defense. * * * ”
Consulting the body of the decision, to confirm the foregoing, we discover this
statement: ” * * * A tender of the property, to be effectual, must have been
made within the time in which the defendant was entitled to deliver it and the
plaintiff bound to receive it. The tender made was not until long after the
lapse of this period, and, not being accepted, is no bar to plaintiff’s right to
recover. ? * * ” The subsequent case of Clark vs. American Express Co.
([1906], 130 Iowa, 254), after distinguishing Hamilton vs. Chicago,
Milwaukee & St. Paul Railway Company, supra, continues: “* * *
Under the conceded facts defendant tendered the goods to plaintiff before
this action was com- menced, and plaintiff refused to receive them. His
action, then, was not for conversion, but for damages. * * *”

A delay of more than two years in making delivery was conclusively
unreasonable. A delay in pressing a defense predicated on tender, of more than
two years counted from the date when the complaint was filed, was likewise
unreasonable. The mancupation of the property by the defendant was sufficiently
complete since it was unable to turn the goods over to the plaintiff at any time
before the complaint was presented, and in fact, could not do so until a long
time thereafter. Add these facts together, and the reasons why the plaintiff can
be permitted to recover on its action are self-evident.

We would not be understood as laying down the absolute rule that tender not
made until after the action is commenced is unavailable as a defense. Suit might
conceivably be instituted with disconcerting haste. In this jurisdiction we have
a remedial code susceptible to extremely elastic construction. What we do mean
is that on the facts at bar, defendant was in effect guilty of conversion and
must accordingly respond for the value of the property at the time of
conversion.

What has been said disposes of the defendant’s first assignment of error, and
its second and third specifications of error fall with it.

Judgment affirmed with costs. So ordered.

Johnson, Street, Avanceña,
Villamor, Ostrand, and Romualdez, JJ., concur.