Bigony v. Tyson

• Decision Date: 26 January 1874
• Citation: 75 Pa. 157
• Parties: Bigony <I>versus</I> Tyson.
• Court: Pennsylvania Supreme Court

Page 157

75 Pa. 157

Bigony versus Tyson.

Supreme Court of Pennsylvania.

January 20, 1874.

January 26, 1874.

January 20th 1874.

Before AGNEW, C. J., MERCUR and GORDON, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Montgomery county: Of July Term 1873, No. 72.

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H. U. Brunner and B. M. Boyer, for plaintiff in error.—Stipulated damages can be, only when there is an unequivocal agreement to that effect: Robeson v. Whiteside, 16 S. & R. 322; Burr v. Todd, 5 Wright 212. Penalty is never construed to mean liquidated damages: Sedgwick on Meas. of Damages 399, 410; Tayloe v. Sandiford, 7 Wheaton 13; Davies v. Penton, 6 B. & C. 216. In the absence of evidence as to intention the sum is considered a penalty: Spear v. Smith, 1 Denio 464; Hoag v. McGinnis, 22 Wend. 163 F. March and G. W. Rogers, for defendant in error.—In each case the language of the contract is to be considered and the intention gathered from its provisions and the circumstances, the ease or difficulty of measuring the damages, &c. and from the whole gather what equity and good conscience would require: Streeper v. Williams, 12 Wright 454. If the stipulation is neither in name or substance a forfeiture or penalty, but a measure to determine what otherwise would be a loss or damage uncertain and difficult to be ascertained, it is liquidated damages: Wolf Creek Co. v. Schultz, 21 P. F. Smith 180; Sedgwick on Damages 449; Westerman v. Means, 2 Jones 97; Chitty on Contracts 977, &c. Powell v. Burroughs, 4 P. F. Smith 329; Young v. White, 5 Watts 460; Shreve v. Brereton, 1 P. F. Smith 181; Pearson v. Williams, 26 Wend. 630.

The opinion of the court was delivered, January 26th 1874, by GORDON, J.

In Burr v. Todd, 5 Wright 206, it was held that a bond in the sum of two thousand dollars, with a condition that the obligor execute and deliver deeds for certain lands therein described, was a penalty conditioned for the conveyance of the title, and not a liquidation of damages for a breach of condition. The bond in the case in hand is similar in its character to that above recited, the difference between the two being found only in the condition. In the one case it is for the conveyance of title; in the other, that Dr. Bigony shall not practise medicine within five miles of the village of Skippackville. Obviously, this difference cannot of itself affect the legal construction of the bond, but one rule must govern both, unless circumstances outside of the bond control that rule.

Justice Woodward, in delivering the opinion in the case above cited, says: "It is impossible to regard it as liquidated damages for breach of condition. There is not a word in it to import an agreement of the parties to that effect." In like manner, do we say of the bond in suit, there is not one word in it which imports an agreement of the parties that it should operate as a liquidation of damages for a breach of its condition.

Viewing it, then, from a legal stand-point, as did the judge below, when he instructed the jury "that the sum designated in the bond is to be deemed and treated as liquidated damages, and not a penalty," we can come to no other than a conclusion contrary to that at which h...