Edgar v. Anthes

• Decision Date: 30 December 1922
• Docket Number: 22175
• Citation: 191 N.W. 682,109 Neb. 546
• Parties: WILLIAM N. EDGAR, APPELLEE, v. JOHN F. ANTHES, APPELLANT
• Court: Nebraska Supreme Court

191 N.W. 682

109 Neb. 546

WILLIAM N. EDGAR, APPELLEE, v. JOHN F. ANTHES, APPELLANT

No. 22175

Supreme Court of Nebraska

December 30, 1922

APPEAL from the district court for Frontier county: LEWIS H BLACKLEDGE, JUDGE. Affirmed.

AFFIRMED.

Ambrose C. Epperson, Charles H. Epperson, Jr., and D. B. Massie, for appellant.

Lamb & Butler and Walter D. James, contra.

Heard before MORRISSEY, C. J., ALDRICH, LETTON and DEAN, JJ REDICK, District Judge.

OPINION

REDICK, District Judge.

Action brought to recover $ 500 paid upon a contract for purchase of real estate and $ 500 as liquidated damages for failure of vendor to comply with the contract. The evidence supports the finding of the jury for the plaintiff, and only two other questions are presented for review. The defendant alleged in his answer that he had been inveigled into the jurisdiction of the county court of Frontier county by fraud, and that such court had no jurisdiction over his person, his residence being in Clay county, and offered evidence in support of such allegation. Whatever merit there may have been in this defense; it was clearly waived by defendant filing a cross-petition asking affirmative relief, as he thereby submitted his person to the jurisdiction. Linton v Heye, 69 Neb. 450, 95 N.W. 1040, and cases cited therein.

The second question arises from the following provision of the contract of sale:

"It is mutually agreed that time is an essential element in this contract, and it is further agreed that in case either of the parties hereto shall fail to perform the stipulations of this contract, or any part of the same, the failing party shall pay to the other party of this contract the sum of five hundred and no/100 dollars as damages for nonfulfilment of contract."

Plaintiff contends that the sum named, $ 500, is liquidated damages, and defendant that it is merely a penalty.

The contract is free from ambiguity, and says, in so many words that the sum mentioned shall be paid "as damages for nonfulfilment of contract," so there is no room for construction. Lorius v. Abbott, 49 Neb. 214, 68 N.W. 486. The intention is plainly expressed; and, if the contract as made is not against conscience or the policy of the law, it must be given effect according to the natural import of the words used. The cases are in considerable conflict, but are in substantial agreement upon the proposition that, when the damages are difficult or uncertain of ascertainment, the parties may liquidate them by contract. It is said: "The actual damages arising from the breach of a contract for the purchase of real estate have been frequently held to be of such an uncertain and unascertainable nature as to warrant the construction that a sum named to be paid on breach is liquidated damages and not a penalty." 17 C. J. 956, sec. 254. "It is...