Hamaker v. Schroers

Citation49 Mo. 406
PartiesSAMUEL J. HAMAKER, ADMINISTRATOR OF D. W. HAMAKER, DECEASED, Appellant, v. D. G. SCHROERS et al., Respondents.
Decision Date29 February 1872
CourtUnited States State Supreme Court of Missouri

Appeal from Buchanan Court of Common Pleas.

Everett & Reed, for appellant.

I. At the time the contract was made the parties could make no exact computation of the damages resulting from non-performance. Hence they had the right to liquidate their damages. (3 Pars. Cont. 159; 17 Ind. 12.)

II. The contract contained but a single covenant, as is evident from the fact that it would be entirely performed by the delivery to plaintiff of the 100 machines (21 N. Y. 256; 2 Allen, 460), and that one covenant was entirely broken. In such cases the amount specified is recoverable as liquidated damages. (19 Barb. 388; 48 Penn. 450; 6 Blackf. 207; 2 Allen, 460; 31 Mo. 52.)

III. Admitting that the contract contained several covenants, a position contended for by defendant's counsel, still they all sound in uncertain damages; and in such cases even the sum agreed upon by the parties is to be deemed liquidated damages. (17 Ind. 10; 13 Gray, 42; 16 N. Y. 469; 5 Seld. 551; 18 Barb. 336; 12 Barb. 147; 11 Barb. 127; 10 Barb. 60; 48 Penn. 455; 17 Wend. 447; 22 Wend. 201; 11 Ind. 70; 19 D. Smith, 573; 1 Ind. 149; 11 Ind. 273; 31 Mo. 52.)

IV. It is well established that courts will not interfere with the amount agreed upon by the parties, provided the damages do not assume the character of gross extravagance, or of wanton and unreasonable disproportion to the nature or extent of the injury. And in this case the defendants bound themselves in the very same sum at which the work and materials they were to give plaintiff were valued. (2 Sto. Eq., § 1318.)

J. P. Grubb, for respondents.

WAGNER, Judge, delivered the opinion of the court.

The court properly declared the law in reference to the character of the bond, and held that the damages therein provided for were not in the nature of liquidated or stated damages. Where the parties have agreed that in case one of them shall do a stipulated act, or omit to do it, the other party shall receive a certain sum as the just, appropriate and conventional amount of damages sustained by such act or omission, courts will not interfere to grant relief, but will deem the parties entitled to fix their own measure of damages, provided that the damages do not assume the character of gross extravagance, or of wanton and unreasonable disproportion to the nature and extent of the injury; and whether a sum inserted in an instrument, to be paid in case of breach, is to be regarded as a penalty or liquidated damages, must be determined by the nature of the contract and its provisions. If the whole scope of the writing shows that it is intended as a penalty, it will be so treated, without reference to any particular language the parties may have used. (Morse v. Rathburn, 42 Mo. 594, where the authorities are cited and examined.)

By the record in this case it appears that the plaintiff's intestate entered into a contract with the defendant in which, for the sum of $1,600, the defendant agreed to deliver to him 100 grain and seed drills of a particular pattern, within a specified time. As an indemnity to the plaintiff's intestate, and to guarantee the faithful performance of the contract, the defendant on his part, with others as his sureties, executed and delivered a bond in the sum of $1,600, in which they bound themselves that the defendant should fully comply with the agreement. The bond is in the usual and ordinary form of such instruments. The case was submitted to the court on...

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12 cases
  • Nichols And Shepard Co. v. Beyer
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1913
  • Dyer v. Cowden
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1913
    ...to justify the courts in giving the contract a different construction. Lawson on Contracts, p. 510; Morse v. Rathbun, 42 Mo. 594; Hamaker v. Schoers, 49 Mo. 406. Defendant seeks to avoid liability for the breach of his contract upon the ground that plaintiff represented to him that the stoc......
  • Thompson v. St. Charles County
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1910
    ...under the sun in that behalf. [Basye v. Ambrose, 28 Mo. 39; Hammer v. Breidenbach, 31 Mo. 49; Morse v. Rathburn, 42 Mo. 594; Hamaker v. Schroers, 49 Mo. 406; May Crawford, 142 Mo. 390, 44 S.W. 260; May v. Crawford, 150 Mo. 504, 51 S.W. 693; Cochran v. Railroad, 113 Mo. 359; Boulware v. Croh......
  • Thompson v. St. Charles County
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1910
    ...in that behalf. Basye v. Ambrose, 28 Mo. 39; Hammer v. Breidenbach, 31 Mo. 49; Morse v. Rathburn, 42 Mo. 594, 97 Am. Dec. 359; Hamaker v. Schnoers, 49 Mo. 406; May v. Crawford, 142 Mo. 390, 44 S. W. 260; s. c., 150 Mo. 504, 51 S. W. 693; Cochran v. Ry. Co., 113 Mo. 359, 21 S. W. 6; Boulware......
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