Greenblatt v. Mccall & Co.
| Decision Date | 03 March 1914 |
| Citation | 64 So. 748,67 Fla. 165 |
| Parties | GREENBLATT v. McCALL & CO. |
| Court | Florida Supreme Court |
Rehearing Denied March 31, 1914.
Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.
Action by McCall & Company, a corporation, against E. Greenblatt. Judgment for plaintiff and defendant brings error. Affirmed conditionally.
Syllabus by the Court
Where the amount mentioned in a contract to be paid upon a breach thereof is to be considered as liquidated damages, or as a penalty merely, is a question of law for the court to determine from the nature of the contract, the terms and purposes of the whole instrument, the natural and ordinary consequences of a breach, and the peculiar circumstances attending each case as it arises.
The mere denomination of the sum to be paid as 'liquidated damages' is not conclusive as to its real character and legal effect. When the agreement is to pay the same large sum for a partial as for a complete breach, the sum will be regarded as a penalty.
When an amount agreed upon as stipulated damages for the breach of a contract may easily be excessive with reference to the terms nature, and purpose of the contract, making it a matter held in terrorem over either party, it may be held a penalty, even though it be specifically designated as liquidated damages.
Where a fixed sum is named to secure the performance of a contract containing stipulations of widely differing importance, for any of which the stipulated sum is an excessive compensation the designated sum may be regarded as a penalty.
When a stipulated amount agreed to be paid for the breach of a contract is in law a penalty, the plaintiff must, among other essentials, allege and prove the damage actually resulting from the breach, and not merely claim the specific sum fixed in the contract.
An agreement that, for a breach of 'any of the terms or conditions' of a contract for the sale of goods, the other party 'may recover and receive, as liquidated damages and not as a penalty, a sum equal to two-thirds of the agreed charge for all goods the contract provides shall be delivered during the remaining term of the contract' is held, under the peculiar circumstances of this case, to warrant the court in enforcing the agreement as for a penalty, and not for liquidated damages, notwithstanding the express terms used.
Where the liability of a defendant is for a penalty and a count of the declaration does not contain the essentials for a recovery of a penalty, a demurrer thereto should be sustained.
A contract is not void because it was executed on Sunday; such execution not being manual labor on Sunday that is forbidden by statute.
Pleas of fraud in executing a contract that do not aver the defendant who is sui juris had no opportunity to fully acquaint himself with the terms of the contract executed by him, or sufficiently set up fraud that would be legal defense to the particular action, are insufficient on demurrer.
Where a separable amount is erroneously included in a judgment, a remittitur of the amount erroneously included may be permitted in lieu of a new trial.
COUNSEL J. P. Stokes, of Pensacola, for plaintiff in error.
Reeves & Watson & Pasco and L. W. Nelson, all of Pensacola, for defendant in error.
The McCall & Company brought an action against Greenblatt, the first count of the declaration being for the value of goods sold and delivered under a special contract; the second count is for liquidated damages for an alleged breach of the special contract, the remaining being common counts. A demurrer to the second count was overruled. Special pleas that the contract, being executed and delivered on Sunday, is void, and that defendant's signature to the contract was secured by misrepresentations, were overruled on demurrer. The defendant declining to plead further, judgment for the plaintiff was rendered in $419.84 for goods sold and delivered, and $1,079.60 as 'damages for the breach of the contract,' with interest. The defendant took writ of error, and assigns for error the orders of the court in overruling the demurrer to the second count of the declaration, in sustaining demurrers to the pleas, and in entering judgment for the plaintiff.
The contract dated April 22, 1911, provides for the sale and shipment to Greenblatt of a stock of 'McCall patterns,' amounting to $300 net, including the May issue of patterns and for monthly shipments of patterns thereafter not exceeding an average of $30 per month, with numerous terms and conditions, the contract to continue for three years after the first shipment of patterns, and longer unless terminated by notice in writing. It provides that on failure to perform ...
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...and on appropriate issues liability is shown as to some and not to other items, a remittitur may be permitted. See Greenblatt v. McCall & Co., 67 Fla. 165, 64 So. 748; Lewis v. Meginniss, 30 Fla. 419, 12 So. Turner v. Adams, 39 Fla. 86, 21 So. 575; National Surety Co. v. Williams, 74 Fla. 4......
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... ... below will be given the privilege of remitting the amount of ... the items improperly included in the judgment. Greenblatt ... v. McCall & Co., 67 Fla. 165, 64 So. 748; Seaboard ... Air Line Ry. v. Simon, 56 Fla. 545, 47 So. 1001, 20 L ... R. A. (N. S.) 126, 16 ... ...
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