Hammer v. Breidenbach

• Citation: 31 Mo. 49
• Parties: HAMMER et al., Respondents, v. BREIDENBACH, Appellant.
• Decision Date: 31 October 1860
• Court: United States State Supreme Court of Missouri

31 Mo. 49

HAMMER et al., Respondents,

v.BREIDENBACH, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. Where an agreement contains several stipulations on both sides, some of them of such a character that the damages resulting from a breach thereof could be easily estimated, and others such that breaches of them would be attended with losses difficult to be estimated, the sum specified in the agreement to be paid for the breach of any stipulation will be construed to be a penalty and not liquidated damages.

2. A., the proprietor of a brewery, entered into a contract with B. by which it was agreed that B. should be employed as foreman of said brewery; that he would guaranty “to furnish an excellent article of beer and lager beer;” that he would exert himself to sell said beer and lager beer to good customers, consult A., the proprietor, concerning all matters of importance pertaining to the business and the sale of the beer and obtain his consent thereto; that he should receive a salary of one thousand dollars per year, payable at certain times; that he would be accountable for every damage which might result from his negligence or careless management. It was further stipulated as follows: “Whosoever of the two contracting parties breaks this contract without sufficient cause, and which is contained in said contract, has to pay to the other party the sum of five hundred dollars in cash.” Held, that the sum thus stipulated to be paid should be construed to be a penalty and not as liquidated damages; that the engagement of B. to furnish an excellent article of beer implied an obligation on the part of A. to furnish him with such materials and such a cellar or cave as would be necessary to the production of the desired quality of beer; that B. would be justified in abandoning the contract if A. should not fulfil these obligations or should furnish a cave in which it would be dangerous for B. to go as required by the contract.

Appeal from St. Louis Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

McClellan, Moody & Hillyer, for appellant.

I. The five hundred dollars are not a conclusive measure of damages. Plaintiffs could recover only such amount, short of five hundred dollars, as the proof shows they were damaged. By the terms of the contract he was bound to make good beer. It was necessary for defendant to frequent the cave; his life was endangered by entering it. Plaintiffs had the power to remedy this. They were bound to do this. They made no effort. Defendant had a good and sufficient cause for leaving. The court erred in excluding the proof as to the unfitness of the cave. If defendant had remained he would have been liable to suits for not making good beer. (See Sedgw. on Dam. 204, 210.)

Jecko, for respondents.

NAPTON, Judge, delivered the opinion of the court.

This suit is brought to recover the penalty of five hundred dollars, for the breach of contract. The contract is as follows: “Agreement between Charles and Philip Hammer & Co. of the one part, and Henry Breidenbach of the other part, both parties of the city of St. Louis, county of St. Louis, state of Missouri. 1st. The proprietors of the Bavarian brewery of St. Louis--Ch. and Ph. Hammer & Co.--engage, on this date, Mr. Henry Breidenbach as foreman of said brewery. 2d. Mr. Henry Breidenbach obligates himself to conduct the said ‘brewery business' conscientiously and with the best ability, and guarantees to furnish an excellent article of ‘beer and lager beer.’ 3d. Mr. Henry Breidenbach also binds himself to exert himself to sell said ‘beer and lager beer’ to good customers. 4th. Mr. Henry Breidenbach is bound to consult the proprietors of the brewery concerning all matters of importance pertaining to the business and the sale of the beer and to obtain their consent thereto. 5th. Mr. Henry Breidenbach will receive in consideration of his services a salary of one thousand dollars per annum. 6th. This salary is to be paid as follows: he shall receive during the first six months of every year only what is absolutely necessary to defray his household expenses (say about thirty to forty dollars) per month; for the remainder of the year, the balance will be paid in monthly rates. 7th. Mr. Henry Breidenbach makes himself accountable for every damage which may result to the business from negligence or careless management on his part in conducting the same. 8th. This contract takes effect from this date, and will expire on the first day of May, 1859. 9th. Whosoever of the two contracting parties breaks this contract without sufficient cause, and which is contained in said contract, has to pay to the other party the sum of five hundred dollars in cash. 10th. In witness whereof both parties have hereto signed their names. St. Louis, this 1st day of January, 1858.”

The breach alleged is, that defendant did not conduct the said brewery, as foreman, up to the first day of May, 1859, but quit the service of plaintiffs, as foreman, against their will and consent, on the 15th August, 1858. They therefore claim the payment of the five hundred dollars.

On the trial the...