Squires v. Elwood

• Decision Date: 29 September 1891
• Citation: 49 N.W. 939,33 Neb. 126
• Parties: G. J. SQUIRES v. S. H. ELWOOD
• Court: Nebraska Supreme Court

49 N.W. 939

33 Neb. 126

G. J. SQUIRES v. S. H. ELWOOD

Supreme Court of Nebraska

September 29, 1891

ERROR to the district court for Holt county. Tried below before KINKAID, J.

AFFIRMED.

H. E Clifford, J. J. King, and G. M. Cleveland, for plaintiff in error, cited: 5 Am. & Eng. Ency. of Law, 25, 26, and cases; Pierce v. Jung, 10 Wis. 25; Jaquith v Hudson, 5 Mich. 123; Linde v. Thompson, 2 Allen [Mass.], 456; Easton v. Canal Co., 13 O., 79; Cushing v. Drew, 97 Mass. 445; Ryan v Martin, 16 Wis. 59; 1 Sutherland, Damages, 475-530; Brennan v. Clark, 29 Neb. 385.

M. F. Harrington, contra.

OPINION

NORVAL, J.

On the 4th day of October, 1886, the defendant contracted in writing to sell and deliver to the plaintiff 3,500 sheep at Grand Island between the 15th and 25th days of November, 1886, for which the plaintiff agreed to pay the sum of $ 3.12 1/2 per hundred pounds. The defendant having failed and refused to deliver the sheep, or any part thereof, the plaintiff brought this action to recover damages for a breach of the contract. The jury assessed the plaintiff's damages at $ 250. The plaintiff prosecutes error to this court.

The contract contains the following provision: "Each of the aforesaid parties further agree that in default of the fulfillment of the aforesaid contract on his part he shall forfeit and pay to the other party the sum of one thousand dollars."

The plaintiff insists that he was entitled to a verdict for the sum of $ 1,000 and interest. In other words, that the amount named in the contract to be forfeited by the party who should fail to fulfill the terms of the agreement should be treated as liquidated and assessed damages, and not as a penalty.

In Brennan et al. v. Clark, 29 Neb. 385, 45 N.W. 472, in laying down the rule governing the construction of a contract, to determine whether the provision therein for the payment of a specified amount by the party in default to the other is to be treated as liquidated damages or a penalty, it is stated in the syllabus that "the court will consider the subject-matter, the language employed, and the intention of the parties. If the construction is doubtful, the agreement will be considered a penalty merely. If damages result from the performance or omission of acts which are certain, or can be ascertained by evidence, the stipulated sum is considered as a penalty; but when the acts or omission occasioning damages are not susceptible of measurement by a pecuniary standard, the sum will be regarded as liquidated damages."

Applying the above rule of construction to the provisions of the contract before us, there can be no doubt that the $ 1,000 therein named is merely a penalty, and should not be regarded as liquidated or assessed...