G.R. No.

L-21601

December 17, 1966

NIELSON & COMPANY, INC., plaintiff-appellant, vs. LEPAN O CONSOLIDA ED MINING COMPANY, defendant-appellee. W. H. Quasha and Associates for plaintiff-appellant. Ponce Enrile, Siguion-Reyna, Montecillo and Belo for defendantappellee. !ALDI"AR, J.: On February 6, 1958, plaintiff brought this action against defendant before the Court of First nstance of !anila to recover certain su"s of "oney representing da"ages allegedly suffered by the for"er in vie# of the refusal of the latter to co"ply #ith the ter"s of a "anage"ent contract entered into bet#een the" on $anuary %&, 19%', including attorney(s fees and costs. )efendant in its ans#er denied the "aterial allegations of the co"plaint and set up certain special defenses, a"ong the", prescription and laches, as bars against the institution of the present action. *fter trial, during #hich the parties presented testi"onial and nu"erous docu"entary evidence, the court a uo rendered a decision dis"issing the co"plaint #ith costs. +he court stated that it did not find sufficient evidence to establish defendant(s counterclai" and so it li,e#ise dis"issed the sa"e. +he present appeal #as ta,en to this Court directly by the plaintiff in vie# of the a"ount involved in the case. +he facts of this case, as stated in the decision appealed fro", are hereunder -uoted for purposes of this decision. t appears that the suit involves an operating agree"ent e/ecuted before 0orld 0ar bet#een the plaintiff and the defendant #hereby the for"er operated and "anaged the "ining properties o#ned by the latter for a "anage"ent fee of 12,5&&.&& a "onth and a 1&3 participation in the net profits resulting fro" the operation of the "ining properties. For brevity and convenience, hereafter the plaintiff shall be referred to as 4 567O4 and the defendant, 651*4+O.

+he antecedents of the case are. +he contract in -uestion 85/hibit 9C(: #as "ade by the parties on $anuary %&, 19%' for a period of five 85: years. n the latter part of 19;1, the parties agreed to rene# the contract for another period of five 85: years, but in the "eanti"e, the 1acific 0ar bro,e out in )ece"ber, 19;1. n $anuary, 19;2 operation of the "ining properties #as disrupted on account of the #ar. n February of 19;2, the "ill, po#er plant, supplies on hand, e-uip"ent, concentrates on hand and "ines, #ere destroyed upon orders of the <nited 7tates *r"y, to prevent their utili=ation by the invading $apanese *r"y. +he $apanese forces thereafter occupied the "ining properties, operated the "ines during the continuance of the #ar, and #ho #ere ousted fro" the "ining properties only in *ugust of 19;5. *fter the "ining properties #ere liberated fro" the $apanese forces, 651*4+O too, possession thereof and e"bar,ed in rebuilding and reconstructing the "ines and "ill> setting up ne# organi=ation> clearing the "ill site> repairing the "ines> erecting staff -uarters and bodegas and repairing e/isting structures> installing ne# "achinery and e-uip"ent> repairing roads and "aintaining the sa"e> salvaging e-uip"ent and storing the sa"e #ithin the bodegas> doing police #or, necessary to ta,e care of the "aterials and e-uip"ent recovered> repairing and rene#ing the #ater syste"> and re"e"bering 85/hibits ?)? and ?5?:. +he rehabilitation and reconstruction of the "ine and "ill #as not co"pleted until 19;8 85/hibit ?F?:. On $une 26, 19;8 the "ines resu"ed operation under the e/clusive "anage"ent of 651*4+O 85/hibit ?F-l?:. 7hortly after the "ines #ere liberated fro" the $apanese invaders in 19;5, a disagree"ent arose bet#een 4 567O4 and 651*4+O over the status of the operating contract in -uestion #hich as rene#ed e/pired in 19;'. <nder the ter"s thereof, the "anage"ent contract shall re"ain in suspense in case fortuitous event or force !a"eure, such as #ar or civil co""otion, adversely affects the #or, of "ining and "illing. ? n the event of inundations, floodings of "ine, typhoon, earth-ua,e or any other force "a@eure, #ar, insurrection, civil co""otion, organi=ed stri,e, riot, in@ury to the "achinery or other event or cause reasonably beyond the control of 4 567O4 and #hich adversely affects the #or, of "ining and "illing> 4 567O4 shall report such fact to 651*4+O and #ithout liability or breach of the ter"s of this

*gree"ent, the sa"e shall re"ain in suspense, #holly or partially during the ter"s of such inability.? 8Clause of 5/hibit ?C?:. 4 567O4 held the vie# that, on account of the #ar, the contract #as suspended during the #ar> hence the life of the contract should be considered e/tended for such ti"e of the period of suspension. On the other hand, 651*4+O contended that the contract should e/pire in 19;' as originally agreed upon because the period of suspension accorded by virtue of the #ar did not operate to e/tend further the life of the contract. 4o understanding appeared fro" the record to have been bad by the parties to resolve the disagree"ent. n the "eanti"e, 651*4+O rebuilt and reconstructed the "ines and #as able to bring the property into operation only in $une of 19;8, . . . . *ppellant in its brief "a,es an alternative assign"ent of errors depending on #hether or not the "anage"ent contract basis of the action has been e/tended for a period e-uivalent to the period of suspension. f the agree"ent is suspended our attention should be focused on the first set of errors clai"ed to have been co""itted by the court a uo> but if the contrary is true, the discussion #ill then be s#itched to the alternative set that is clai"ed to have been co""itted. 0e #ill first ta,e up the -uestion #hether the "anage"ent agree"ent has been e/tended as a result of the supervening #ar, and after this -uestion shall have been deter"ined in the sense sustained by appellant, then the discussion of the defense of laches and prescription #ill follo# as a conse-uence. +he pertinent portion of the "anage"ent contract 85/h. C: #hich refers to suspension should any event constituting force !a"eure happen appears in Clause thereof #hich #e -uote hereunder. n the event of inundations, floodings of the "ine, typhoon, earth-ua,e or any other force "a@eure, #ar, insurrection, civil co""otion, organi=ed stri,e, riot, in@ury to the "achinery or other event or cause reasonably beyond the control of 4 567O4 and #hich adversely affects the #or, of "ining and "illing> 4 567O4 shall report such fact to 651*4+O and #ithout liability or breach of the ter"s of this *gree"ent, the sa"e shall re"ain in suspense, #holly or partially during the ter"s of such inability. * careful scrutiny of the clause above--uoted #ill at once reveal that in order that the "anage"ent contract "ay be dee"ed suspended t#o events "ust ta,e place #hich "ust be brought in a satisfactory

"anner to the attention of defendant #ithin a reasonable ti"e, to #it. 81: the event constituting the force !a"eure "ust be reasonably beyond the control of 4ielson, and 82: it "ust adversely affect the #or, of "ining and "illing the co"pany is called upon to underta,e. *s long as these t#o condition e/ist the agree"ent is dee" suspended. )oes the evidence on record sho# that these t#o conditions had e/isted #hich "ay @ustify the conclusion that the "anage"ent agree"ent had been suspended in the sense entertained by appellantA 6et us go to the evidence. t is a "atter that this Court can ta,e @udicial notice of that #ar supervened in our country and that the "ines in the 1hilippines #ere either destroyed or ta,en over by the occupation forces #ith a vie# to their operation. +he 6epanto "ines #ere no e/ception for not #as the "ine itself destroyed but the "ill, po#er plant, supplies on hand, e-uip"ent and the li,e that #ere being used there #ere destroyed as #ell. +hus, the follo#ing is #hat appears in the 6epanto Co"pany !ining Beport dated !arch 1%, 19;6 sub"itted by its 1resident C. *. )e0itt to the defendant.1 ? n February of 19;2, our "ill, po#er plant, supplies on hand, e-uip"ent, concentrates on hand, and "ine, #ere destroyed upon orders of the <.7. *r"y to prevent their utili=ation by the ene"y.? +he report also "entions the report sub"itted by !r. Clessing, an official of 4ielson, that ?the original "ill #as destroyed in 19;2? and ?the original po#er plant and all the installed e-uip"ent #ere destroyed in 19;2.? t is then undeniable that beginning February, 19;2 the operation of the 6epanto "ines stopped or beca"e suspended as a result of the destruction of the "ill, po#er plant and other i"portant e-uip"ent necessary for such operation in vie# of a cause #hich #as clearly beyond the control of 4ielson and that as a conse-uence such destruction adversely affected the #or, of "ining and "illing #hich the latter #as called upon to underta,e under the "anage"ent contract. Conse-uently, by virtue of the very ter"s of said contract the sa"e "ay be dee"ed suspended fro" February, 19;2 and as of that "onth the contract still had 6& "onths to go. On the other hand, the record sho#s that the defendant ad"itted that the occupation forces operated its "ining properties sub@ect of the "anage"ent contract,2 and fro" the very report sub"itted by 1resident )e0itt it appears that the date of the liberation of the "ine #as *ugust 1, 19;5 although at the ti"e there #ere still "any booby traps.% 7i"ilarly, in a report sub"itted by the defendant to its stoc,holders dated *ugust 25, 19;8, the follo#ing appears. ?Dour )irectors ta,e pleasure in reporting that $une 26, 19;8 "ar,ed the official return to operations of this Co"pany of its properties in !an,ayan, !ountain 1rovince, 1hilippines.?;

t is, therefore, clear fro" the foregoing that the 6epanto "ines #ere liberated on *ugust 1, 19;5, but because of the period of rehabilitation and reconstruction that had to be "ade as a result of the destruction of the "ill, po#er plant and other necessary e-uip"ent for its operation it cannot be said that the suspension of the contract ended on that date. Eence, the contract "ust still be dee"ed suspended during the succeeding years of reconstruction and rehabilitation, and this period can only be said to have ended on $une 26, 19;8 #hen, as reported by the defendant, the co"pany officially resu"ed the "ining operations of the 6epanto. t should here be stated that this period of suspension fro" February, 19;2 to $une 26, 19;8 is the one urged by plaintiff.5 t having been sho#n that the operation of the 6epanto "ines on the part of 4ielson had been suspended during the period set out above #ithin the purvie# of the "anage"ent contract, the ne/t -uestion that needs to be deter"ined is the effect of such suspension. 7tated in another #ay, the -uestion no# to be deter"ined is #hether such suspension had the effect of e/tending the period of the "anage"ent contract for the period of said suspension. +o elucidate this "atter, #e again need to resort to the evidence. For appellant 4ielson t#o #itnesses testified, declaring that the suspension had the effect of e/tending the period of the contract, na"ely, Feorge +. 7choley and !ar, 4estle. 7choley #as a "ining engineer since 1929, an incorporator, general "anager and director of 4ielson and Co"pany> and for so"e ti"e he #as also the vicepresident and director of the 6epanto Co"pany during the pre-#ar days and, as such, he #as an officer of both appellant and appellee co"panies. *s vice-president of 6epanto and general "anager of 4ielson, 7choley participated in the negotiation of the "anage"ent contract to the e/tent that he initialed the sa"e both as #itness and as an officer of both corporations. +his #itness testified in this case to the effect that the standard force !a"eure clause e"bodied in the "anage"ent contract #as ta,en fro" si"ilar "ining contracts regarding "ining operations and the understanding regarding the nature and effect of said clause #as that #hen there is suspension of the operation that suspension "eant the e/tension of the contract. +hus, to the -uestion, ?Cefore the #ar, #hat #as the understanding of the people in the particular trend of business #ith respect to the force !a"eure clauseA?, 7choley ans#ered. ?+hat #as our understanding that the suspension "eant the e/tension of ti"e lost.?6 !ar, 4estle, the other #itness, testified along si"ilar line. Ee had been connected #ith 4ielson since 19%' until the ti"e he too, the #itness stand and had been a director, "anager, and president of the sa"e

co"pany. 0hen he #as propounded the -uestion. ?)o you ,no# #hat #as the custo" or usage at that ti"e in connection #ith force !a"eure clauseA?, 4estle ans#ered, ? n the "ining #orld the force !a"eure clause is generally considered. 0hen a cala"ity co"es up and stops the #or, li,e in #ar, flood, inundation or fire, etc., the #or, is suspended for the duration of the cala"ity, and the period of the contract is e/tended after the cala"ity is over to enable the person to do the big #or, or recover his "oney #hich he has invested, or acco"plish #hat his obligation is to a third person .?' *nd the above testi"onial evidence finds support in the very "inutes of the special "eeting of the Coard of )irectors of the 6epanto Co"pany issued on !arch 1&, 19;5 #hich #as then chair"aned by *tty. C. *. )e0itt. 0e read the follo#ing fro" said report. +he Chair"an also stated that the contract #ith 4ielson and Co"pany #ould soon e/pire if the obligations #ere not suspended, in #hich case #e should have to pay the" the retaining fee of 12,5&&.&& a "onth. Ee believes ho#ever, that there is a provision in the contract suspending the effects thereof in cases li,e the present, and that even if it #ere not there, the la# itself #ould suspend the operations of the contract on account of the #ar. *nyho#, he stated, #e shall have no difficulty in solving satisfactorily any proble" #e "ay have #ith 4ielson and Co"pany.8 +hus, #e can see fro" the above that even in the opinion of !r. )e0itt hi"self, #ho at the ti"e #as the chair"an of the Coard of )irectors of the 6epanto Co"pany, the "anage"ent contract #ould then e/pire unless the period therein rated is suspended but that, ho#ever, he e/pressed the belief that the period #as e/tended because of the provision contained therein suspending the effects thereof should any of the case of force "a@eure happen li,e in the present case, and that even if such provision did not e/ist the la# #ould have the effect of suspending it on account of the #ar. n substance, *tty. )e0itt e/pressed the opinion that as a result of the suspension of the "ining operation because of the effects of the #ar the period of the contract had been e/tended. Contrary to #hat appellant(s evidence reflects insofar as the interpretation of the force !a"eure clause is concerned, ho#ever, appellee gives <s an opposite interpretation invo,ing in support thereof not only a letter *tty. )e0itt sent to 4ielson on October 2&, 19;5,9 #herein he e/pressed for the first ti"e an opinion contrary to #hat he reported to the Coard of )irectors of 6epanto Co"pany as stated in the portion of the "inutes of its Coard of )irectors as -uoted

above, but also the ruling laid do#n by our 7upre"e Court in so"e cases decided so"eti"e ago, to the effect that the #ar does not have the effect of e/tending the ter" of a contract that the parties "ay enter into regarding a particular transaction, citing in this connection the cases of #ictorias Planters Association $. #ictorias Milling %o!pany, 51 O.F. ;&1&> Rosario S. #da. de &acson, et al. $. A'elardo (. )ia*, 8' 1hil. 15&> and &o %hing y So +oung %hong %o. $. %ourt of Appeals, et al., 81 1hil. 6&1. +o bolster up its theory, appellee also contends that the evidence regarding the alleged custo" or usage in "ining contract that appellant(s #itnesses tried to introduce #as inco"petent because 8a: said custo" #as not specifically pleaded> 8b: 6epanto "ade ti"ely and repeated ob@ections to the introduction of said evidence> 8c: 4ielson failed to sho# the essential ele"ents of usage #hich "ust be sho#n to e/ist before any proof thereof can be given to affect the contract> and 8d: the testi"ony of its #itnesses cannot prevail over the very ter"s of the "anage"ent contract #hich, as a rule, is supposed to contain all the ter"s and conditions by #hich the parties intended to be bound. t is here necessary to analy=e the contradictory evidence #hich the parties have presented regarding the interpretation of the force !a"eure clause in the "anage"ent contract. *t the outset, it should be stated that, as a rule, in the construction and interpretation of a docu"ent the intention of the parties "ust be sought 8Bule 1%&, 7ection 1&, Bules of Court:. +his is the basic rule in the interpretation of contracts because all other rules are but ancilliary to the ascertain"ent of the "eaning intended by the parties. *nd once this intention has been ascertained it beco"es an integral part of the contract as though it had been originally e/pressed therein in une-uivocal ter"s 87horeline Oil Corp. v. Fuy, *pp. 189, 7o., %;8, cited in 1'* C.$.7., p. ;':. Eo# is this intention deter"inedA One pattern is to ascertain the conte"poraneous and subse-uent acts of the contracting parties in relation to the transaction under consideration 8*rticle 1%'1, Civil Code:. n this particular case, it is #orthy of note #hat *tty. C. *. )e0itt has stated in the special "eeting of the Coard of )irectors of 6epanto in the portion of the "inutes already -uoted above #herein, as already stated, he e/pressed the opinion that the life of the contract, if not e/tended, #ould last only until $anuary, 19;' and yet he said that there is a provision in the contract that the #ar had the effect of suspending the agree"ent and that the effect of that suspension #as that the agree"ent #ould have to continue #ith the result that 6epanto #ould have to pay the "onthly retaining fee of 12,5&&.&&. *nd this belief that

the #ar suspended the agree"ent and that the suspension "eant its e/tension #as so fir" that he #ent to the e/tent that even if there #as no provision for suspension in the agree"ent the la# itself #ould suspend it. t is true that !r. )e0itt later sent a letter to 4ielson dated October 2&, 19;5 #herein apparently he changed his "ind because there he stated that the contract #as "erely suspended, but not e/tended, by reason of the #ar, contrary to the opinion he e/pressed in the "eeting of the Coard of )irectors already adverted to, but bet#een the t#o opinions of *tty. )e0itt 0e are inclined to give "ore #eight and validity to the for"er not only because such #as given by hi" against his o#n interest but also because it #as given before the Coard of )irectors of 6epanto and in the presence, of so"e 4ielson officials 1& #ho, on that occasion #ere naturally led to believe that that #as the true "eaning of the suspension clause, #hile the second opinion #as "erely self-serving and #as given as a "ere afterthought. *ppellee also clai"s that the issue of true intent of the parties #as not brought out in the co"plaint, but anent this "atter suffice it to state that in paragraph 4o. 19 of the co"plaint appellant pleaded that the contract #as e/tended. 11 +his is a sufficient allegation considering that the rules on pleadings "ust as a rule be liberally construed. t is li,e#ise note#orthy that in this issue of the intention of the parties regarding the "eaning and usage concerning the force !a"eure clause, the testi"ony adduced by appellant is uncontradicted. f such #ere not true, appellee should have at least atte"pted to offer contradictory evidence. +his it did not do. 4ot even 6epanto(s 1resident, !r. G. 5. 6ednic,y #ho too, the #itness stand, contradicted said evidence. n holding that the suspension of the agree"ent "eant the e/tension of the sa"e for a period e-uivalent to the suspension, 0e do not have the least intention of overruling the cases cited by appellee. 0e si"ply #ant to say that the ruling laid do#n in said cases does not apply here because the "aterial facts involved therein are not the sa"e as those obtaining in the present. +he rule of stare decisis cannot be invo,ed #here there is no analogy bet#een the "aterial facts of the decision relied upon and those of the instant case. +hus, in #ictorias Planters Association $s. #ictorias Milling %o!pany, 51 O.F. ;&1&, there #as no evidence at all regarding the intention of the parties to e/tend the contract e-uivalent to the period of suspension caused by the #ar. 4either #as there evidence that the parties understood the suspension to "ean e/tension> nor #as there evidence

of usage and custo" in the industry that the suspension "eant the e/tension of the agree"ent. *ll these "atters, ho#ever, obtain in the instant case. *gain, in the case of Rosario S. #da. de &acson $s. A'elardo (. )ia*, 8' 1hil. 15&, the issue referred to the interpretation of a pre-#ar contract of lease of sugar cane lands and the liability of the lessee to pay rent during and i""ediately follo#ing the $apanese occupation and #here the defendant clai"ed the right of an e/tension of the lease to "a,e up for the ti"e #hen no cane #as planted. +his Court, in holding that the years #hich the lessee could not use the land because of the #ar could not be discounted fro" the period agreed upon, held that ?4o#here is there any insinuation that the defendant-lessee #as to have possession of lands for seven years e/cluding years on #hich he could not harvest sugar.? Clearly, this ratio decidendi is not applicable to the case at bar #herein there is evidence that the parties understood the ?suspension clause by force "a@eure? to "ean the e/tension of the period of agree"ent. 6astly, in the case of &o %hing y So +oung %hong %o. $s. %ourt of Appeals, et al., 81 1hil. 6&1, appellant leased a building fro" appellee beginning 7epte"ber 1%, 19;& for three years, rene#able for t#o years. +he lessee(s possession #as interrupted in February, 19;2 #hen he #as ousted by the $apanese #ho turned the sa"e over to Fer"an Otto 7chul=e, the latter occupying the sa"e until $anuary, 19;5 upon the arrival of the liberation forces. *ppellant contended that the period during #hich he did not en@oy the leased pre"ises because of his dispossession by the $apanese had to be deducted fro" the period of the lease, but this #as overruled by this Court, reasoning that such dispossession #as "erely a si"ple ?perturbacion de "erohecho y de la cual no responde el arrendador? under *rticle 156& of the old Civil Code *rt. 166;:. +his ruling is also not applicable in the instant case because in that case there #as no evidence of the intention of the parties that any suspension of the lease by force !a"eure #ould be understood to e/tend the period of the agree"ent. ,n resu!e, there is sufficient @ustification for <s to conclude that the cases cited by appellee are inapplicable because the facts therein involved do not run parallel to those obtaining in the present case. 0e shall no# consider appellee(s defense of laches. *ppellee is correct in its contention that the defense of laches applies independently of prescription. 6aches is different fro" the statute of li"itations. 1rescription is concerned #ith the fact of delay, #hereas laches is concerned #ith the effect of delay. 1rescription is a "atter of ti"e> laches is principally a -uestion of ine-uity of per"itting a clai" to be

enforced, this ine-uity being founded on so"e change in the condition of the property or the relation of the parties. 1rescription is statutory> laches is not. 6aches applies in e-uity, #hereas prescription applies at la#. 1rescription is based on fi/ed ti"e, laches is not. 8%& C.$.7., p. 522> See also 1o"eroy(s 5-uity $urisprudence, Gol. 2, 5th ed., p. 1'':. +he -uestion to deter"ine is #hether appellant 4ielson is guilty of laches #ithin the "eaning conte"plated by the authorities on the "atter. n the leading case of Fo Chi Fun, et al. vs. Fo Cho, et al., 96 1hil. 622, this Court enu"erated the essential ele"ents of laches as follo#s. 81: conduct on the part of the defendant, or of one under #ho" he clai"s, giving rise to the situation of #hich co"plaint is "ade and for #hich the co"plaint see,s a re"edy> 82: delay in asserting the co"plainant(s rights, the co"plainant having had ,no#ledge or notice of the defendant(s conduct and having been afforded an opportunity to institute a suit> 8%: lac, of ,no#ledge or notice on the part of the defendant that the co"plainant #ould assert the right on #hich he bases his suit> and 8;: in@ury or pre@udice to the defendant in the event relief is accorded to the co"plainant, or the suit is not held barred. *re these re-uisites present in the case at barA +he first ele"ent is conceded by appellant 4ielson #hen it clai"ed that defendant refused to pay its "anage"ent fees, its percentage of profits and refused to allo# it to resu"e the "anage"ent operation. *nent the second ele"ent, #hile it is true that appellant 4ielson ,ne# since 19;5 that appellee 6epanto has refused to per"it it to resu"e "anage"ent and that since 19;8 appellee has resu"ed operation of the "ines and it filed its co"plaint only on February 6, 1958, there being apparent delay in filing the present action, 0e find the delay @ustified and as such cannot constitute laches. t appears that appellant had not abandoned its right to operate the "ines for even before the ter"ination of the suspension of the agree"ent as early as $anuary 2&, 19;612 and even before !arch 1&, 19;5, it already clai"ed its right to the e/tension of the contract,1% and it pressed its clai" for the balance of its share in the profits fro" the 19;1 operation 1; by reason of #hich negotiations had ta,en place for the settle"ent of the clai"15 and it #as only on $une 25, 195' that appellee finally denied the clai". +here is, therefore, only a period of less than one year that had elapsed fro" the date of the final denial of the clai" to the date of the filing of the co"plaint, #hich certainly cannot be considered as unreasonable delay.

+he third ele"ent of laches is absent in this case. t cannot be said that appellee 6epanto did not ,no# that appellant #ould assert its rights on #hich it based suit. +he evidence sho#s that 4ielson had been clai"ing for so"e ti"e its rights under the contract, as already sho#n above. 4either is the fourth ele"ent present, for if there has been so"e delay in bringing the case to court it #as "ainly due to the atte"pts at arbitration and negotiation "ade by both parties. f 6epanto(s docu"ents #ere lost, it #as not caused by the delay of the filing of the suit but because of the #ar. *nother reason #hy appellant 4ielson cannot be held guilty of laches is that the delay in the filing of the co"plaint in the present case #as the inevitable of the protracted negotiations bet#een the parties concerning the settle"ent of their differences. t appears that 4ielson as,ed for arbitration16 #hich #as granted. * co""ittee consisting of !essrs. )e0itt, Farnell and Clessing #as appointed to act on said differences but !r. )e0itt al#ays tried to evade the issue1' until he #as ta,en ill and died. !r. Farnell offered to 4ielson the su" of 11%,&&&.58 by #ay of co"pro"ise of all its clai" arising fro" the "anage"ent contract18 but apparently the offer #as refused. 4egotiations continued #ith the e/change of letters bet#een the parties but #ith no satisfactory result.19 t can be said that the delay due to protracted negotiations #as caused by both parties. 6epanto, therefore, cannot be per"itted to ta,e advantage of such delay or to -uestion the propriety of the action ta,en by 4ielson. +he defense of laches is an e-uitable one and e-uity should be applied #ith an even hand. * person #ill not be per"itted to ta,e advantage of, or to -uestion the validity, or propriety of, any act or o"ission of another #hich #as co""itted or o"itted upon his o#n re-uest or #as caused by his conduct 8B. E. 7tearns Co. vs. <nited 7tates, 291 <.7. 5;, '8 6. 5d. 6;', 5; 7. Ct., %25> <nited 7tates vs. Eenry 1rentiss H Co., 288 <.7. '%, '' 6. 5d., 626, 5% 7. Ct., 28%:. Ead the action of 4ielson prescribedA +he court a uo held that the action of 4ielson is already barred by the statute of li"itations, and that ruling is no# assailed by the appellant in this appeal. n urging that the court a uo erred in reaching that conclusion the appellant has discussed the issue #ith reference to particular clai"s. +he first clai" is #ith regard to the 1&3 share in profits of 19;1 operations. nas"uch as appellee 6epanto alleges that the correct basis of the co"putation of the sharing in the net profits shall be as provided for in Clause G of the !anage"ent Contract, #hile appellant 4ielson "aintains that the basis should be #hat is contained in the

"inutes of the special "eeting of the Coard of )irectors of 6epanto on *ugust 21, 19;&, this -uestion "ust first be elucidated before the "ain issue is discussed. +he facts relative to the "atter of profit sharing follo#. n the "anage"ent contract entered into bet#een the parties on $anuary %&, 19%', #hich #as rene#ed for another five years, it #as stipulated that 4ielson #ould receive a co"pensation of 12,5&&.&& a "onth plus 1&3 of the net profits fro" the operation of the properties for the preceding "onth. n 19;&, a dispute arose regarding the co"putation of the 1&3 share of 4ielson in the profits. +he Coard of )irectors of 6epanto, reali=ing that the "echanics of the contract #as unfair to 4ielson, authori=ed its 1resident to enter into an agree"ent #ith 4ielson "odifying the pertinent provision of the contract effective $anuary 1, 19;& in such a #ay that 4ielson shall receive 81: 1&3 of the dividends declared and paid, #hen and as paid, during the period of the contract and at the end of each year, 82: 1&3 of any depletion reserve that "ay be set up, and 8%: 1&3 of any a"ount e/pended during the year out of surplus earnings for capital account. 2& Counsel for the appellee ad"itted during the trial that the e/tract of the "inutes as found in 5/hibit C is a faithful copy fro" the original. 21 !r. Feorge 7choley testified that the foregoing "odification #as agreed upon. 22 6epanto clai"s that this ne# basis of co"putation should be re@ected 81: because the contract #as clear on the point of the 1&3 share and it #as so alleged by 4ielson in its co"plaint, and 82: the "inutes of the special "eeting held on *ugust 21, 19;& #as not signed. t appearing that the issue concerning the sharing of the profits had been raised in appellant(s co"plaint and evidence on the "atter #as introduced 2% the sa"e can be ta,en into account even if no a"end"ent of the pleading to "a,e it confor" to the evidence has been "ade, for the sa"e is authori=ed by 7ection ;, Bule 1', of the old Bules of Court 8no# 7ection 5, Bule 1&, of the ne# Bules of Court:. Co"ing no# to the -uestion of prescription raised by defendant 6epanto, it is contended by the latter that the period to be considered for the prescription of the clai" regarding participation in the profits is only four years, because the "odification of the sharing e"bodied in the "anage"ent contract is "erely verbal, no #ritten docu"ent to that effect having been presented. +his contention is untenable. +he "odification appears in the "inutes of the special "eeting of the Coard of )irectors of 6epanto held on *ugust 21, 19;&, it having been "ade upon the authority of its 1resident, and in said "inutes the ter"s of the "odification had been specified. +his is sufficient to have the agree"ent considered, for the purpose of applying the statute of

li"itations, as a #ritten contract even if the "inutes #ere not signed by the parties 8% *.6.B., 2d, p. 8%1:. t has been held that a #riting containing the ter"s of a contract if adopted by t#o persons "ay constitute a contract in #riting even if the sa"e is not signed by either of the parties 8% *.6.B., 2d, pp. 812-81%:. *nother authority says that an unsigned agree"ent the ter"s of #hich are e"bodied in a docu"ent unconditionally accepted by both parties is a #ritten contract 8Corbin on Contracts, Gol. 1, p. 85: +he "odification, therefore, "ade in the "anage"ent contract relative to the participation in the profits by appellant, as contained in the "inutes of the special "eeting of the Coard of )irectors of 6epanto held on *ugust 21, 19;&, should be considered as a #ritten contract insofar as the application of the statutes of li"itations is concerned. Eence, the action thereon prescribes #ithin ten 81&: years pursuant to 7ection ;% of *ct 19&. Co"ing no# to the facts, 0e find that the right of 4ielson to its 1&3 participation in the 19;1 operations accrued on )ece"ber 21, 19;1 and the right to co""ence an action thereon began on $anuary 1, 19;2 so that the action "ust be brought #ithin ten 81&: years fro" the latter date. t is true that the co"plaint #as filed only on February 6, 1958, that is si/teen 816: years, one 81: "onth and five 85: days after the right of action accrued, but the action has not yet prescribed for various reasons #hich 0e #ill hereafter discuss. +he first reason is the operation of the !oratoriu" 6a#, for appellant(s clai" is undeniably a clai" for "oney. 7aid clai" accrued on )ece"ber %1, 19;1, and 6epanto is a #ar sufferer. Eence the clai" #as covered by 5/ecutive Order 4o. %2 of !arch 1&, 19;5. t is #ell settled that the operation of the !oratoriu" 6a# suspends the running of the statue of li"itations 81acific Co""ercial Co. vs. *-uino, F.B. 4o. 6-1&2';, February 2', 195':. +his Court has held that the !oratoriu" 6a# had been enforced for eight 88: years, t#o 82: "onths and eight 88: days 8+ioseco vs. )ay, et al., 6-99;;, *pril %&, 195'> 6evy Eer"anos, nc. vs. 1ere=, 6-1;;8', *pril 29, 196&:, and deducting this period fro" the ti"e that had elapsed since the accrual of the right of action to the date of the filing of the co"plaint, the e/tent of #hich is si/teen 816: years, one 81: "onth and five 85: days, #e #ould have less than eight 88: years to be counted for purposes of prescription. Eence appellant(s action on its clai" of 1&3 on the 19;1 profits had not yet prescribed. *nother reason that "ay be ta,en into account in support of the nobar theory of appellant is the arbitration clause e"bodied in the

"anage"ent contract #hich re-uires that any disagree"ent as to any a"ount of profits before an action "ay be ta,en to court shall be sub@ect to arbitration. 2; +his agree"ent to arbitrate is valid and binding. 25 t cannot be ignored by 6epanto. Eence 4ielson could not bring an action on its participation in the 19;1 operations-profits until the condition relative to arbitration had been first co"plied #ith. 26 +he evidence sho#s that an arbitration co""ittee #as constituted but it failed to acco"plish its purpose on $une 25, 195'. 2' Fro" this date to the filing of the co"plaint the re-uired period for prescription has not yet elapsed. 4ielson clai"s the follo#ing. 81: 1&3 share in the dividends declared in 19;1, e/clusive of interest, a"ounting to 11',5&&.&&> 82: 1&3 in the depletion reserves for 19;1> and 8%: 1&3 in the profits for years prior to 19;8 a"ounting to 119,'6;.'&. 0ith regard to the first clai", the 6epanto(s report for the calendar year of 195; 28 sho#s that it declared a 1&3 cash dividend in )ece"ber, 19;1, the a"ount of #hich is 11'5,&&&.&&. +he evidence in this connection 85/hibits 6 and O: #as ad"itted #ithout ob@ection by counsel for 6epanto. 29 4ielson clai"s 1&3 share in said a"ount #ith interest thereon at 63 per annu". +he docu"ent 85/hibit 6: #as even recogni=ed by 6epanto(s 1resident G. 6. 6ednic,y, %& and this clai" is predicated on the provision of paragraph G of the "anage"ent contract as "odified pursuant to the proposal of 6epanto at the special "eeting of the Coard of )irectors on *ugust 21, 19;& 85/h. C:, #hereby it #as provided that 4ielson #ould be entitled to 1&3 of any dividends to be declared and paid during the period of the contract. 0ith regard to the second clai", 4ielson ad"its that there is no evidence regarding the a"ount set aside by 6epanto for depletion reserve for 19;1 %1 and so the 1&3 participation clai"ed thereon cannot be assessed. *nent the third clai" relative to the 1&3 participation of 4ielson on the su" of 119',6;'.&8, #hich appears in 6epanto(s annual report for 19;8 %2 and entered as profit for prior years in the state"ent of inco"e and surplus, #hich a"ount consisted ?al"ost in its entirety of proceeds of copper concentrates shipped to the <nited 7tates during 19;',? this clai" should to denied because the a"ount is not ?dividend declared and paid? #ithin the purvie# of the "anage"ent contract. +he fifth assign"ent of error of appellant refers to the failure of the lo#er court to order 6epanto to pay its "anage"ent fees for $anuary, 19;2, and for the full period of e/tension a"ounting to 115&,&&&.&&, or

12,5&&.&& a "onth for si/ty 86&: "onths, I a total of 1152,5&&.&& I #ith interest thereon fro" the date of @udicial de"and. t is true that the clai" of "anage"ent fee for $anuary, 19;2 #as not a"ong the causes of action in the co"plaint, but inas"uch as the contract #as suspended in February, 19;2 and the "anage"ent fees as,ed for included that of $anuary, 19;2, the fact that such clai" #as not included in a specific "anner in the co"plaint is of no "o"ent because an appellate court "ay treat the pleading as a"ended to confor" to the evidence #here the facts sho# that the plaintiff is entitled to relief other than #hat is as,ed for in the co"plaint 8*lon=o vs. Gilla"or, 16 1hil. %15:. +he evidence sho#s that the last pay"ent "ade by 6epanto for "anage"ent fee #as for 4ove"ber and )ece"ber, 19;1. %% f, as 0e have declared, the "anage"ent contract #as suspended beginning February 19;2, it follo#s that 4ielson is entitled to the "anage"ent fee for $anuary, 19;2. 6et us no# co"e to the "anage"ent fees clai"ed by 4ielson for the period of e-tension. n this respect, it has been sho#n that the "anage"ent contract #as e/tended fro" $une 2', 19;8 to $une 26, 195%, or for a period of si/ty 86&: "onths. )uring this period 4ielson had a right to continue in the "anage"ent of the "ining properties of 6epanto and 6epanto #as under obligation to let 4ielson do it and to pay the corresponding "anage"ent fees. *ppellant 4ielson insisted in perfor"ing its part of the contract but 6epanto prevented it fro" doing so. Eence, by virtue of *rticle 1186 of the Civil Code, there #as a constructive fulfill"ent an the part of 4ielson of its obligation to "anage said "ining properties in accordance #ith the contract and 6epanto had the reciprocal obligation to pay the corresponding "anage"ent fees and other benefits that #ould have accrued to 4ielson if 6epanto allo#ed it 84ielson: to continue in the "anage"ent of the "ines during the e/tended period of five 85: years. 0e find that the preponderance of evidence is to the effect that 4ielson had insisted in "anaging the "ining properties soon after liberation. n the report %; of 6epanto, sub"itted to its stoc,holders for the period fro" 19;1 to !arch 1%, 19;6, are stated the activities of 4ielson(s officials in relation to 4ielson(s insistence in continuing the "anage"ent. +his report #as ad"itted in evidence #ithout ob@ection. 0e find the follo#ing in the report. !r. Clessing, in !ay, 19;5, acco"panied Clar, and 7tanford to 7an Fernando 86a <nion: to a#ait the liberation of the "ines. 8!r. Clessing #as the +reasurer and !etallurgist of 4ielson:. Clessing #ith Clar, and 7tanford #ent to the property on $uly 16 and found that #hile the "ill site had been cleared of the ene"y the latter #as still holding the area

around the staff houses and putting up a strong defense. *s a result, they returned to 7an Fernando and later #ent bac, to the "ines on $uly 26. !r. Clessing "ade the report, dated *ugust 6, reco""ending a progra" of operation. !r. 4ielson hi"self spent a day in the "ine early in )ece"ber, 19;5 and reiterated the progra" #hich !r. Clessing had outlined. +#o or three #ee,s before the date of the report, !r. Coldren of the 4ielson organi=ation also visited the "ine and told 1resident C. *. )e0itt of 6epanto that he thought that the "ine could be put in condition for the delivery of the ore #ithin ten 81&: days. *nd according to !ar, 4estle, a #itness of appellant, 4ielson had several "en including engineers to do the @ob in the "ines and to resu"e the #or,. +hese engineers #ere in fact sent to the "ine site and sub"itted reports of #hat they had done. %5 On the other hand, appellee clai"s that 4ielson #as not ready and able to resu"e the #or, in the "ines, relying "ainly on the testi"ony of )r. $uan 4abong, for"er secretary of both 4ielson and 6epanto, given in the separate case of 4ancy rving Bo"ero vs. 6epanto Consolidated !ining Co"pany 8Civil Case 4o. 652, CF , Caguio:, to the effect that as far as he ,ne# ?4ielson and Co"pany had not atte"pted to operate the 6epanto Consolidated !ining Co"pany because !r. 4ielson #as not here in the 1hilippines after the last #ar. Ee ca"e bac, later,? and that 4ielson and Co"pany had no "oney nor stoc,s #ith #hich to start the operation. Ee #as as,ed by counsel for the appellee if he had testified that #ay in Civil Case 4o. 652 of the Court of First nstance of Caguio, and he ans#ered that he did not confir" it fully. 0hen this #itness #as as,ed by the sa"e counsel #hether he confir"ed that testi"ony, he said that #hen he testified in that case he #as not fully a#are of #hat happened and that after he learned "ore about the officials of the corporation it #as only then that he beca"e a#are that 4ielson had really sent his "en to the "ines along #ith !r. Clessing and that he #as a#are of this fact personally. Ee further said that !r. 4ielson #as here in 19;5 and ?he #as going out and contacting his people.? %6 6epanto ad"its, in its o#n brief, that 4ielson had really insisted in ta,ing over the "anage"ent and operation of the "ines but that it 86epanto: une-uivocally refuse to allo# it. +he follo#ing is #hat appears in the brief of the appellee. t #as #hile defendant #as in the "idst of the rehabilitation #or, #hich #as fully described earlier, still reeling under the terrible devastation and destruction #rought by #ar on its "ine that 4ielson insisted in ta,ing over the "anage"ent and operation of the "ine. 4ielson thus put 6epanto in a position #here defendant, under the circu"stances, had to refuse, as in fact it

did, 4ielson(s insistence in ta,ing over the "anage"ent and operation because, as #as obvious, it #as i"possible, as a result of the destruction of the "ine, for the plaintiff to "anage and operate the sa"e and because, as provided in the agree"ent, the contract #as suspended by reason of the #ar. +he stand of 6epanto in disallo#ing 4ielson to assu"e again the "anage"ent of the "ine in 19;5 #as une-uivocal and cannot be "isinterpreted, infra.%' Cased on the foregoing facts and circu"stances, and Our conclusion that the "anage"ent contract #as e/tended, 0e believe that 4ielson is entitled to the "anage"ent fees for the period of e/tension. 4ielson should be a#arded on this clai" si/ty ti"es its "onthly pay of 12,5&&.&&, or a total of 115&,&&&.&&. n its si/th assign"ent of error 4ielson contends that the lo#er court erred in not ordering 6epanto to pay it 84ielson: the 1&3 share in the profits of operation reali=ed during the period of five 85: years fro" the resu"ption of its post-#ar operations of the !an,ayan "ines, in the total su" of 12,;&%,&5%.2& #ith interest thereon at the rate of 63 per annu" fro" February 6, 1958 until full pay"ent. %8 +he above clai" of 4ielson refers to four categories, na"ely. 81: cash dividends> 82: stoc, dividends> 8%: depletion reserves> and 8;: a"ount e/pended on capital invest"ent. *nent the first category, 6epanto(s report for the calendar year 195; %9 contains a record of the cash dividends it paid up to the date of said report, and the post-#ar dividends paid by it corresponding to the years included in the period of e/tension of the "anage"ent contract are as follo#s. 1O7+-0*B

1&3

4ove"ber 19; 9 $uly 195 & 195 &

1 2&&,&&&.&&

1&3

%&&,&&&.&&

1 &

1&3

October

5&&,&&&.&&

1 1 1 2 1 % 1 ; 1 5 1 6 1 ' 1 8 1 9 2 & 2 1 2 2

2&3

)ece"ber

195 & 195 1 195 1 195 1 195 1 195 2 195 2 195 2 195 2 195 2 195 % 195 %

1,&&&,&&&.&&

2&3

!arch

1,&&&,&&&.&&

2&3

$une

1,&&&,&&&.&&

2&3

7epte"be r )ece"ber

1,&&&,&&&.&&

;&3

2,&&&,&&&.&&

2&3

!arch

1,&&&,&&&.&&

2&3

!ay

1,&&&,&&&.&&

2&3

$uly

1,&&&,&&&.&&

2&3

7epte"be r )ece"ber

1,&&&,&&&.&&

2&3

1,&&&,&&&.&&

2&3

!arch

1,&&&,&&&.&&

2&3

$une

1,&&&,&&&.& &

+O+*6

11;,&&&,&&&.& &

*ccording to the ter"s of the "anage"ent contract as "odified, appellant is entitled to 1&3 of the 11;,&&&,&&&.&& cash dividends that had been distributed, as stated in the above-"entioned report, or the su" of 11,;&&,&&&.&&. 0ith regard to the second category, the stoc, dividends declared by 6epanto during the period of e/tension of the contract are. On 4ove"ber 28, 19;9, the stoc, dividend declared #as 5&3 of the outstanding authori=ed capital of 12,&&&,&&&.&& of the co"pany, or stoc, dividends #orth 11,&&&,&&&.&&> and on *ugust 22, 195&, the stoc, dividends declared #as 66-2J%3 of the standing authori=ed capital of 1%,&&&,&&&.&& of the co"pany, or stoc, dividends #orth 12,&&&,&&&.&&. ;& *ppellant(s clai" that it should be given 1&3 of the cash value of said stoc, dividends #ith interest thereon at 63 fro" February 6, 1958 cannot be granted for that #ould not be in accordance #ith the "anage"ent contract #hich entitles 4ielson to 1&3 of any dividends declared paid, .hen and as paid. 4ielson, therefore, is entitled to 1&3 of the stoc, dividends and to the fruits that "ay have accrued to said stoc, dividends pursuant to *rticle 116; of the Civil Code. Eence to 4ielson is due shares of stoc, #orth 11&&,&&&.&&, as per stoc, dividends declared on 4ove"ber 28, 19;9 and all the fruits accruing to said shares after said date> and also shares of stoc, #orth 12&&,&&&.&& as per stoc, dividends declared on *ugust 2&, 195& and all fruits accruing thereto after said date. *nent the third category, the depletion reserve appearing in the state"ent of inco"e and surplus sub"itted by 6epanto corresponding to the years covered by the period of e/tension of the contract, "ay be ite"i=ed as follo#s. n 19;8, as per 5/h. F, p. %6 and 5/h. K, p. 5, the depletion reserve set up #as 111,6&2.8&. n 19;9, as per 5/h. F, p. ;9 and 5/h. K, p. 5, the depletion reserve set up #as 1%%,556.&'. n 195&, as per 5/h. E, p. %', 5/h. K, p. 6 and 5/h. , p. %', the depletion reserve set up #as 18;,96%.%&.

n 1951, as per 5/h. , p. ;5, 5/h. K, p. 6, and 5/h. $, p. ;5, the depletion reserve set up #as 1129,&89.88. n 1952, as per 5/h. $, p. ;5, 5/h. K, p. 6 and 5/h. L p. ;1, the depletion reserve #as 11;',1;1.5;. n 195%, as per 5/h. L, p. ;1, and 5/h. K, p. 6, the depletion reserve set up as 12'',;9%.25. Begarding the depletion reserve set up in 19;8 it should be noted that the a"ount given #as for the #hole year. nas"uch as the contract #as e/tended only for the last half of the year 19;8, said a"ount of 111,6&2.8& should be divided by t#o, and so 4ielson is only entitled to 1&3 of the half a"ounting to 15,8&1.;&. 6i,e#ise, the a"ount of depletion reserve for the year 195% #as for the #hole year and since the contract #as e/tended only until the first half of the year, said a"ount of 12'',;9%.25 should be divided by t#o, and so 4ielson is only entitled to 1&3 of the half a"ounting to 11%8,';6.62. 7u""ing up the entire depletion reserves, fro" the "iddle of 19;8 to the "iddle of 195%, #e #ould have a total of 15%9,298.81, of #hich 4ielson is entitled to 1&3, or to the su" of 15%,928.88. Finally, #ith regard to the fourth category, there is no figure in the record representing the value of the fi/ed assets as of the beginning of the period of e/tension on $une 2', 19;8. t is possible, ho#ever, to arrive at the a"ount needed by adding to the value of the fi/ed assets as of )ece"ber %1, 19;' one-half of the a"ount spent for capital account in the year 19;8. *s of )ece"ber %1, 19;', the value of the fi/ed assets #as 11,&61,8'8.88 ;1 and as of )ece"ber %1, 19;8, the value of the fi/ed assets #as 1%,2'&,;&8.&'. ;2 Eence, the increase in the value of the fi/ed assets for the year 19;8 #as 12,2&8,529.19, one-half of #hich is 11,1&;,26;.59, #hich a"ount represents the e/penses for capital account for the first half of the year 19;8. f to this a"ount #e add the fi/ed assets as of )ece"ber %1, 19;' a"ounting to 11,&61,8'8.88, #e #ould have a total of 12,166,1;%.;' #hich represents the fi/ed assets at the beginning of the second half of the year 19;8. +here is also no figure representing the value of the fi/ed assets #hen the contract, as e-tended, ended on $une 26, 195%> but this "ay be co"puted by getting one-half of the e/penses for capital account "ade in 195% and adding the sa"e to the value of the fi/ed assets as of )ece"ber %1, 195% is 19,'55,8;&.;1 ;% #hich the value of the fi/ed assets as of )ece"ber %1, 1952 is 18,;6%,';1.82, the difference being

11,292,&98.69. One-half of this a"ount is 16;6,&;9.%; #hich #ould represent the e/penses for capital account up to $une, 195%. +his a"ount added to the value of the fi/ed assets as of )ece"ber %1, 1952 #ould give a total of 19,1&9,'91.16 #hich #ould be the value of fi/ed assets at the end of $une, 195%. +he increase, therefore, of the value of the fi/ed assets of 6epanto fro" $une, 19;8 to $une, 195% is 16,9;%,6;'.69, #hich a"ount represents the difference bet#een the value of the fi/ed assets of 6epanto in the year 19;8 and in the year 195%, as stated above. On this a"ount 4ielson is entitled to a share of 1&3 or to the a"ount of 169;,%6;.'6. Considering that "ost of the clai"s of appellant have been entertained, as pointed out in this decision, 0e believe that appellant is entitled to be a#arded attorney(s fees, especially #hen, according to the undisputed testi"ony of !r. !ar, 4estle, 4ielson obliged hi"self to pay attorney(s fees in connection #ith the institution of the present case. n this respect, 0e believe, considering the intricate nature of the case, an a#ard of fifty thousand 815&,&&&.&&: pesos for attorney(s fees #ould be reasonable. 4 G 50 OF +E5 FOB5FO 4F CO47 )5B*+ O47, 0e hereby reverse the decision of the court a uo and enter in lieu thereof another, ordering the appellee 6epanto to pay appellant 4ielson the different a"ounts as specified hereinbelo#. 81: 1&3 share of cash dividends of )ece"ber, 19;1 in the a"ount of 11',5&&.&&, #ith legal interest thereon fro" the date of the filing of the co"plaint> 82: "anage"ent fee for $anuary, 19;2 in the a"ount of 12,5&&.&&, #ith legal interest thereon fro" the date of the filing of the co"plaint> 8%: "anage"ent fees for the si/ty-"onth period of e/tension of the "anage"ent contract, a"ounting to 115&,&&&.&&, #ith legal interest fro" the date of the filing of the co"plaint> 8;: 1&3 share in the cash dividends during the period of e/tension of the "anage"ent contract, a"ounting to 11,;&&,&&&.&&, #ith legal interest thereon fro" the date of the filing of the co"plaint> 85: 1&3 of the depletion reserve set up during the period of e/tension, a"ounting to 15%,928.88, #ith legal interest thereon fro" the date of the filing of the co"plaint>

86: 1&3 of the e/penses for capital account during the period of e/tension, a"ounting to 169;,%6;.'6, #ith legal interest thereon fro" the date of the filing of the co"plaint> 8': to issue and deliver to 4ielson and Co., nc. shares of stoc, of 6epanto Consolidated !ining Co. at par value e-uivalent to the total of 4ielson(s l&3 share in the stoc, dividends declared on 4ove"ber 28, 19;9 and *ugust 22, 195&, together #ith all cash and stoc, dividends, if any, as "ay have been declared and issued subse-uent to 4ove"ber 28, 19;9 and *ugust 22, 195&, as fruits that accrued to said shares> f sufficient shares of stoc, of 6epanto(s are not available to satisfy this @udg"ent, defendant-appellee shall pay plaintiff-appellant an a"ount in cash e-uivalent to the "ar,et value of said shares at the ti"e of default 812 C.$.7., p. 1%&:, that is, all shares of the stoc, that should have been delivered to 4ielson before the filing of the co"plaint "ust be paid at their "ar,et value as of the date of the filing of the co"plaint> and all shares, if any, that should have been delivered after the filing of the co"plaint at the "ar,et value of the shares at the ti"e 6epanto disposed of all its available shares, for it is only then that 6epanto placed itself in condition of not being able to perfor" its obligation 8*rticle 116&, Civil Code:> 88: the su" of 15&,&&&.&& as attorney(s fees> and 89: the costs. t is so ordered. %oncepcion, %./., Regala, Ma0alintal, Beng*on, /.P., Sanche* and %astro, //., concur. Reyes, /.B.&. and Barrera, //., too, no part.