DANFOSS, INC., G.R. No.

143788
Petitioner,
Present :

PANGANIBAN, Acting C.J.,

SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
CARPIO MORALES* and
GARCIA, JJ.

CONTINENTAL CEMENT
CORPORATION,
Respondent. Promulgated :

September 9, 2005

x----------------------------------------x

DECISION

CORONA, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules on Civil
Procedure of the February 11, 2000 decision[1] of the Court of Appeals in CA-G.R.
No. SP-55645, and its resolution dated June 7, 2000 denying petitioners motion for
reconsideration.

The antecedents show that on November 5, 1998, respondent Continental

Cement Corporation (CCC) filed a complaint for damages against petitioner
DANFOSS and Mechatronics Instruments and Controls, Inc. (MINCI) before the
Regional Trial Court of Quezon City, Branch 80, alleging that:

xxx xxx xxx

6. On 1 September 1997, Plaintiff CCC purchased

from defendant MINCI two (2) unit 132 KW Danfoss Brand
Frequency Converter/Inverter for use in the Finish Mill of its
Cement Plant located in Barrio Bigte, Norzagaray, Bulacan. The
said purchase is covered by a Purchase [Order] (PO) No. 36625.

6.1 Under the terms

and conditions of the purchase order, the delivery of
the two (2) unit Frequency Converter are to be
delivered within eight (8) to ten (10) weeks from the
opening of the letter of credit;
7. Defendant MINCI, immediately relayed the
purchase order of plaintiff CCC to the other defendant DANFOSS,
represented by Messrs. Klaus Stove and Hans Vigaard, who in turn
forwarded the same to their Asian Regional Office in Singapore and
Head Office in Denmark for the shipment of the orders to the
Philippines.

7.1 Defendant
DANFOSS commitment to deliver the two (2) unit
Danfoss Brand Frequency Converter/Inverter to
plaintiff CCC was relayed by defendant MINCI to
CCC upon the assurance of Messrs. Stove and
Vigaard of DANFOSS.

8. On September 1997, plaintiff CCC received the

pro-forma invoice of defendant MINCI through fax transmission
dated 2 September 1998, indicating the mode of payment through
irrevocable letter of credit in favor of Danfoss Industries Pte. Ltd.

8.1 Plaintiff CCC

executed and opened a letter of credit under LC No.
970884 in favor of DANFOSS INDUSTRIES PTE.
LTD., with address at 6 Jalan Pesawat, Singapore
619364, which is the Asian Regional Office of
defendant DANFOSS

9. Defendant MINCI informed plaintiff CCC through

fax transmission dated 17 September 1997, that the two (2) unit
Frequency Converter/Inverter are ready for shipment, and at the
same time requested for the amendments of the letter of credit
changing the port of origin/loading from Singapore to Denmark.

9.1 In compliance,
plaintiff CCC amended the letter of credit changing
the port of origin from Singapore to Denmark.

10. On 6 November 1997, defendant MINCI informed

plaintiff CCC that Danfoss Industries Pte. Ltd. was still checking
the status of the shipment of the two (2) unit Frequency
Converter/Inverter with Danfoss Denmark.

10.1 In reply, plaintiff

CCC through a letter dated 7 November 1997,
reiterated its demand that every delay in the shipment
of the two (2) unit Frequency Converter/Inverter will
cause substantial losses in its operations and requested
for the early work out and the immediate shipment of
the frequency converter to avoid further loss to the
company.

11. However, on 9 November 1997, defendant

DANFOSS, informed the other defendant MINCI through fax
transmission, copy furnished plaintiff CCC, that the reason why
DANFOSS has delivery problems was that some of the supplied
components for the new VLT 5000 series did not meet the agreed
 quality standard. That means that their factory was canvassing for
another supplier. And at that moment, there was no clear message
when normal production will resume.

12. Due to this information received, plaintiff CCC

surmised that defendants MINCI and DANFOSS could not be able
to deliver the two (2) unit Frequency Converter within the
maximum period of ten (10) weeks period from the opening of the
Letter of Credit, as one of the conditions in the Purchase Order
dated 1 September 1997.

12.1 Thereafter, no
definite commitment was received by plaintiff CCC
from defendants MINCI and DANFOSS for the
delivery of the two (2) unit Frequency Converter.

13. By reason of the delay of the defendants MINCI and

DANFOSS to deliver the two (2) unit Frequency
Converter/Inverter under PO No. 36625, plaintiff CCC, through its
Purchasing Manager, informed defendant MINCI in a letter dated
13 November 1997, of the plaintiffs intention to cancel the said
order.

13.1 As a consequence
thereof, plaintiff CCC has suffered an actual
substantial production losses in the amount of Eight
Million Sixty-four Thousand Pesos (P8,064,000.00)
due to the time lost and delay in the delivery of the
said two (2) unit Frequency Converter/Inverter.
Likewise, plaintiff CCC was compelled to look for
another supplier.

xxx xxx xxx[2]

On February 17, 1999, petitioner DANFOSS filed a motion to dismiss the complaint
on the ground that it did not state a cause of action:
xxx xxx xxx

The above allegations of the complaint clearly establish the following key
constitutive facts:

1. Defendants period of delivery is from 8 to 10 weeks

from the opening of the letter of credit on September 9, 1997 or
until November 19, 1997.

2. Defendant Danfoss, although having problems with

its supplier during the period prior to defendants cancellation,
nevertheless, plaintiff never alleged that Danfoss Denmark cannot
perform its obligation to deliver by the 10th week or on November
20, 1997. Admittedly, plaintiff only surmised that defendant
Danfoss could not deliver.
 3. Before the period for delivery has expired on
November 19, 1997, the plaintiff cancelled its order on November
13, 1997. The cancellation took place seven (7) days before the
expiry of the defendants obligation to deliver on November 19,
1997.

4. Neither plaintiff nor defendant Danfoss changed the

date of delivery, what plaintiff changed in the letter of credit was
only the port of origin/loading from Singapore to Denmark. The
period of delivery as stipulated in the pro forma invoice issued by
defendant MINCI remained intact, that is for a period of 6 to 10
weeks from the opening of the letter of credit on September 9, 1997
or until November 19, 1997 was still in force when the plaintiff
cancelled its order on November 13, 1997. Defendant Danfoss has
not incurred in delay and has 7 days more within which to make
delivery. Plaintiff, having cancelled the order on November 13,
1997 before the expiry of defendant Danfoss delivery commitment,
defendant Danfosss principal could not have been in default.

5. Plaintiff never made an extrajudicial demand for the

delivery of two (2) units Frequency Converter on its due date. On
the contrary, as above alleged, plaintiff cancelled its order on
November 13, 1997.

6. Plaintiffs claim for damages could not have accrued

until after defendant incurred in delay.

The above allegations neither prove any right of the plaintiffs

arising from the transactions nor a violation of such right. It is submitted
that this Honorable Court based on the complaint, cannot render a valid
judgment against the defendant Danfoss. The plaintiffs cause of action
against Danfoss or plaintiffs right to demand delivery cannot arise earlier
than November 19, 1997, which is the last day for the defendant Danfosss
principal (Danfoss Denmark) to deliver the two (2) units Frequency
Converter. As admitted by the plaintiff, it cancelled its order on November
13, 1997, or six (6) days before the expiry of the defendants obligation to
deliver. Indeed, defendant Danfosss obligation to deliver is not yet
demandable. The period of 8 to 10 weeks for the delivery of plaintiffs
purchase order of two (2) units Frequency Converter was established for
the benefit of both the plaintiff and the defendant Danfoss. As such,
plaintiff cannot demand delivery before the period stipulated.

xxx xxx xxx

From the allegations of the complaint, there is also no clear and

categorical demand for the fulfillment of the plaintiffs obligation to
deliver by the 10th week or on November 19, 1997.

WHEREFORE, it is respectfully prayed of this Honorable Court

that the Complaint be dismissed for failure to state a cause of action.[3]

The court a quo denied the motion to dismiss in its order[4] dated May 28, 1999,
holding that:
 xxx xxx xxx

In the Courts opinion, the issue of whether or not the defendants incur
delay in the delivery of the equipment in question within the period
stipulated is a debatable question which necessitates actual trial on the
merits where the parties have to adduce evidence in support of their
respective stance.

While the defendants contend that the stipulated period of delivery had
not lapsed yet when the plaintiff cancelled its order of the two equipments
in question as the cancellation took place seven (7) days before the expiry
date of the defendants obligation to deliver, the plaintiffs position is that
the acts of the defendants had made compliance with their obligation to
deliver within the period stipulated, impossible, hence, there was no need
for a demand as the law provides that when demand would be useless, as
when the obligor has rendered it beyond his power to perform. The
plaintiffs contention if properly and strongly supported by evidence
during the hearing of the merits of the case may well negates (sic) the
defendants contrary stand.

As to the argument of the defendant MINCI that it cannot be held liable

jointly with the defendant Danfoss due to the fact that it was merely an
agent of Danfoss, the Court finds the same a debatable issue considering
the stand of plaintiff that the defendant MINCI dealt with the former not
as an agent but also as a principal. The issue at hand necessitates the
presentation of evidence which has to be done during the hearing on the
merits of the case where the issue of damages incurred by either of the
parties may well be taken up and judgment be rendered after presentation
of evidence by the parties.

WHEREFORE, premises considered, the two motions to dismiss,

interposed separately by the defendants as earlier stated, are both denied.

SO ORDERED.[5]
Danfoss filed a motion for reconsideration of the order but it was denied. On
appeal to the Court of Appeals, the latter also denied Danfoss petition for lack of
merit. The CA likewise denied petitioners motion for reconsideration, hence, this
appeal.
The only issue for our consideration is whether or not the CA erred in
affirming the denial by the court a quo of petitioners motion to dismiss the complaint
for damages on the ground that it failed to state a cause of action.
Section 1 (g), Rule 16 of the 1997 Revised Rules on Civil Procedure provides
that:

Section 1. Grounds Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made
on any of the following grounds:

xxx xxx xxx

 (g) That the pleading asserting the claim states no cause
of action;

A cause of action is defined under Section 2, Rule 2 of the same Rules as:

Sec. 2. Cause of action, defined. A cause of action is the act or omission

by which a party violates a right of another.

It is the delict or wrongful act or omission committed by the defendant in violation

of the primary right of the plaintiff.[6]

In order to sustain a dismissal on the ground of lack of cause of action, the

insufficiency must appear on the face of the complaint. And the test of the
sufficiency of the facts alleged in the complaint to constitute a cause of action is
whether or not, admitting the facts alleged, the court can render a valid judgment
thereon in accordance with the prayer of the complaint. For this purpose, the motion
to dismiss must hypothetically admit the truth of the facts alleged in the complaint. [7]

After a careful perusal of the allegations in respondents complaint for

damages against petitioner, we rule that the same failed to state a cause of action.
When respondent sued petitioner for damages, petitioner had not violated any right
of respondent from which a cause of action had arisen. Respondent
only surmised that petitioner would not be able to deliver the two units frequency
converter/inverter on the date agreed upon by them. Based on this apprehension, it
cancelled its order six days prior to the agreed date of delivery. How could
respondent hold petitioner liable for damages (1) when petitioner had not yet
breached its obligation to deliver the goods and (2) after respondent made it
impossible for petitioner to deliver them by cancelling its order even before the
agreed delivery date?

The trial court erred in ruling that the issue of whether or not the defendants
incurred delay in the delivery of the equipment within the period stipulated was a
debatable question. It said that trial on the merits was necessary and the parties had
to adduce evidence in support of their respective positions.[8] But what was there to
argue about when, based on the allegations of the complaint, petitioner was not yet
due to deliver the two units frequency converter/inverter when respondent cancelled
its order? It still had six days within which to comply with its obligation. The court a
quo should not have denied petitioners motion to dismiss the complaint (for its
failure to state a cause of action) when, on its face, it was clear that petitioner had
not yet reneged on its obligation to deliver the frequency converter/inverter on the
date mutually agreed upon by the parties. Moreover, the obligation itself was negated
by no less than respondents own act of cancelling its order even before the prestation
became due and demandable. Where therefore was the breach? Where was the
damage caused by petitioner? There was none.

Consequently, it was wrong for the CA to affirm the order of the trial court
denying petitioners motion to dismiss the complaint for its failure to state a cause of
action.

The principle of anticipatory breach enunciated in Blossom & Company, Inc.

v. Manila Gas Corporation[9] does not apply here. In that case, Blossom &
Company, Inc. entered into a contract with Manila Gas Corporation for the sale and
delivery of water gas and coal gas tar at stipulated prices for a period of four years.
On the second year of the contract, Manila Gas willfully and deliberately refused to
deliver any coal and water gas tar to Blossom and Company, Inc. because it was
asking for a higher price than what had been previously stipulated by them. The price
of its tar products had gone up. We held that:

even if the contract is divisible in its performance and the future periodic
deliveries are not yet due, if the obligor has already manifested his refusal
to comply with his future periodic obligations, the contract is entire and
the breach total, hence, there can only be one action for damages.[10]

Thus, the principle contemplates future periodic deliveries and

a willful refusal to comply therewith. Here, the obligation was single and indivisible
to deliver two units of frequency converter/inverter by November 19, 1997. The
records do not show that petitioner refused to deliver the goods on the date agreed
upon. On the contrary, petitioner exerted efforts to make good its obligation by
looking for other suppliers who could provide it the parts needed to make timely
delivery of the frequency converter/inverter ordered by respondent.

Furthermore, respondents complaint suffered from another fatal infirmity. It

was premature. The obligation of petitioner to respondent was not yet due and
demandable at the time the latter filed the complaint. The alleged violation of
respondents right being no more than mere speculation, there was no need to call for
judicial intervention.
The premature invocation of the courts intervention was fatal to respondents cause
of action.[11] Hence, the dismissal of respondents complaint was in order.

In sum, since respondents fear that petitioner might not be able to deliver the
frequency converter/inverter on time was not the cause of action referred to by the
Rules and jurisprudence, the motion to dismiss the respondents complaint for
damages for lack of cause of action should have been granted by the trial court. In
addition, the dismissal of the complaint was warranted on the ground of prematurity.
WHEREFORE, we hereby GRANT the petition. The assailed decision of
the CA dated February 11, 2000 and its resolution dated June 7, 2000
are REVERSED and SET ASIDE. Civil Case No. Q-98-35997 pending before the
Regional Trial Court of Quezon City, Branch 80, is hereby DISMISSED.

SO ORDERED.