Gower v. Saltmarsh

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Gower v. Saltmarsh, 11 Mo. 271 (Mo. 1848)
• Decision Date: 31 March 1848
• Parties: GOWER v. SALTMARSH.

11 Mo. 271

GOWER

v.SALTMARSH.

Supreme Court of Missouri.

March Term, 1848.

ERROR TO ST. LOUIS CIRCUIT COURT.

SPALDING, for Plaintiff.

TODD, for Defendant.

NAPTON, J.

This was action of debt, brought by Saltmarsh on the following agreement: “An article of agreement made and entered into this 11th day of April, 1845, between J. H. Gower of the first part, and E. W. Saltmarsll, captain of the Steamboat Potosi, of the second part: The party of the first part agrees to furnish the party of the second part four thousand bushels of wheat, on Iowa and Cedar rivers, or other freight equivalent; 2,000 at twelve and a half cents per bushel, and 2,000 at fifteen cents per bushel; also guarantees water sufficient to admit said boat to go up as far as the rapids on Cedar, and to come out of the river with a load to the amount of four thousand bushels of wheat, on five and a half feet water, provided the said party of the second part make said trip by the 19th of April next. It is further agreed by the party of the first part, that in case of failure of any of the above conditions of said contract, he shall pay to the party of the second part the full amount of freight of the 4,000 bushels of wheat, at the prices as stipulated in the foregoing; and in default of the payment to the full satisfaction of the party of the second part, the party of the second part shall or may have the right to sue and recover the sum of $550, amount of freight aforesaid.

JAMES H. GOWER,

[L. S.].”

E. SALTMARSH.

[L. S.].

The declaration avers, that the plaintiff started with his boat, Potosi, for said rivers, but, in consequence of the water not being five and a half feet deep, he was delayed, and did not reach the point where the wheat was to be delivered until the 17th, and that he was then, in consequence of low water, unable to take the 4,000 bushels of wheat. The plaintiff further avers that he took for said defendant as much lard and wheat as the stage of water would admit of, but was greatly delayed by low water on his down ward trip, so that he did not reach St. Louis until the 23rd. He avers that he was ready and willing to perform his part of the engagement before recited, and that the want of five and a half feet water was all that prevented him. He therefore demanded the $550.

An attachment was sued out and levied upon the property of Gower, and also served upon him personally. The affidavit of Saltmarsh delared the amount of indebtedness of the defendant to be $350. On the 24th November, 1845, a judgment by default was entered against the defendant--and “it appearing to the court,” (says the record), “from the said instrument in writing on which this action is founded, that the said defendant is indebted unto the said plaintiff in the sum of five hundred dollars, and that the said plaintiff has sustained damages,” &c., a judgment was entered for the debt and damages aforesaid, and execution awarded.

On the 12th January, 1846, a motion was made to set aside the judgment by default and assessment of damages--accompanied with two affidavits, the one by the defendant and the other by his attorney. These affidavits set forth that the failure to plead had been occasioned by the neglect of the attorney. This motion was overruled.

If the sum of five hundred and fifty dollars is to be regarded as a penalty, and not in the nature of liquidated damages, the court could not assess the damages without the intervention of a jury, and the judgment founded on such assessment will be erroneous. This error will be noticed though no motion in arrest was made in the court below. Benton v. Lindell, 10 Mo. R. 557.

It is not very easy to extract from the adjudged cases any general rule by which penalties are to be distinguished from liquidated damages.^(a) Judge Cowen, in his note to Spencer v. Tilden, 5 Cowen, 144, thinks that no general rule ought to be adopted, at least in relation to the forms of language in which such contracts may be expressed. If any particular form of words be sanctioned by the courts as sufficient to constitute fixed damages, the parties will of course adopt this form. The principle which that learned Judge...