Davis v. Freeman

• Citation: 10 Mich. 188
• Court: Supreme Court of Michigan
• Decision Date: 13 May 1862
• Parties: Hiram Davis and another v. Jared Freeman

10 Mich. 188

Hiram Davis and another v. Jared Freeman

Supreme Court of Michigan

May 13, 1862

Heard April 12, 1862

Error to Shiawassee Circuit.

The action below was brought by Freeman, who, in the first count of the declaration, set out a contract made November 15 1859, by which defendants (below) were to draw, within the winter next following, all the pine timber on a certain lot of land, at one dollar and fifty cents per thousand feet, to be paid for as follows: "Whatever supplies are necessary to carry on said job, up to one dollar per thousand feet, as fast as said logs are barked, inspected and scaled, it being understood that the second party (Freeman) is to furnish enough supplies to make the commencement of said job in advance of there being any logs barked, it being understood that the advance is to be part of the one dollar payment, and the balance, fifty cents per thousand feet, to be paid in money when this contract is completed, it being understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents per thousand feet is settled, fixed and liquidated damages, in case this contract is not completed by said first party." Which contract, it was alleged, Davis & Ingersoll had failed to perform on their part.

The declaration also contained the common counts.

Defendants demanded a bill of particulars of the plaintiff's demand and one was furnished, specifying hay, lumber, chains, etc and payments for defendants, but no way referring to the contract.

Defendants pleaded the general issue, and gave notice of set-off.

On the trial before a jury, the contract was offered in evidence, and objected to by defendants, on the ground that plaintiff had abandoned his claim under the same, by filing a bill of particulars which does not include any claim under the contract. The objection was overruled, and the contract received in evidence.

The Circuit Judge charged the jury that the damages referred to in the contract were liquidated and fixed by the parties, and that if the jury found that defendants had failed to fulfill on their part, plaintiff was entitled to have fifty cents per thousand feet deducted from the whole sum to be paid them for the delivery of the logs. To this charge, defendants excepted.

The jury returned a verdict for plaintiff for seventy-five dollars, and the court gave judgment for that amount, and also gave costs of suit, "for the reason," as stated in the bill of exceptions, "that the plaintiff's claim, as established at the trial, exceeded two hundred dollars, and that the same was reduced by set-off."

Defendants brought error.

Judgment reversed, and a new trial granted.

McCurdy & Raynale, for plaintiffs in error:

1. It was error to admit the contract in evidence--it not being covered by the bill of particulars: 7 Cow. 317; 17 Wend. 20; 1 Burr. Pr., 432.

2. The fifty cents per thousand mentioned in the contract was in the nature of a penalty, and not liquidated damages: Sedg. on Dam., 429; 1 Denio 464; 16 N. Y., 277; 18 Barb. 50, 338; 21 N. Y., 253; 5 Mich. 123.

3. It was error to award costs to plaintiff. The Circuit Judge could not know how much of plaintiff's demand the jury found "established," nor whether it was reduced by set-off or not.

Goulds & Hanchett, for defendant in error:

1. The contract being specially declared upon, it was not necessary to mention it in the bill of particulars: Green's Pr., 344; 4 Wend. 200; 19 Conn. 309; 5 E. L. & Eq., 441; 5 C. & P., 340; 8 C. & P., 769; 1 Burr. Pr., 430; 2 Arch Pr., 221.

2. The charge with respect to the damages was correct. The case was a proper one for the parties to fix upon and settle the damages: 5 Mich. 137; 16 N. Y., 469; 19 Barb. 106; 17 Wend. 447; 22 Wend. 201.

5. The court was right in awarding costs: 14 Wend. 68; 3 Ind. 430; 8 Blackf. 556.

Manning, J. Martin, Ch. J. and Campbell, J., Christiancy, J. concurred.

OPINION

Manning J.:

The plaintiffs in error were to have one dollar fifty cents per thousand feet for drawing the timber, one dollar of which was to be paid as the timber was drawn, in supplies to enable them to carry on the job, and the remaining fifty cents in cash, when all the timber was drawn. In the language of the contract, "it being understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents per thousand feet is settled, fixed and liquidated damages, in case this contract is not completed by the said first party."

They having failed to draw all the timber, the question is whether the fifty cents per thousand feet on what was drawn, and which was to be paid on completion of the contract, is to be regarded as stipulated damages, or in the nature of a forfeiture or penalty for not completing the contract. The court below charged the jury that the fifty cents per thousand feet on what had been drawn was stipulated damages. In this we think the court erred. If stipulated damages for a non-performance of the entire contract, the defendant in error could not recover any other or greater damages for a non-performance, in whole or in...