Swiet v. Crow

• Decision Date: 30 April 1855
• Docket Number: No. 103.,103.
• Citation: 17 Ga. 609
• Parties: J. Sedgewick Swiet, plaintiff in error. vs. Thomas Crow, defendant.
• Court: Georgia Supreme Court

17 Ga. 609

J. Sedgewick Swiet, plaintiff in error. vs. Thomas Crow, defendant.

No. 103.

Supreme Court of the State of Georgia

APRIL TERM, 1855.

Debt, in Whitfield Superior Court. Tried before Judge Trippe, April Term, 1855.

This was an action of debt for breach of the covenants of the following bond:

"Georgia, Union County:

J. Sedgewick Swift having, at my request, yielded up a mortgage given him to secure a note made to him by myself and James Crow, for Two Hundred and Thirty-five Dollars— now in consideration of said accommodation, and the trouble caused to him, I bind myself, my heirs, executors and administrators, that I will pay the said Swift, his heirs and assigns, One Hundred Dollars."

"The condition of this bond is, whereas, I promise, first, to give acceptable security on the note aforesaid, within ten days; and secondly, before next May to give said Swift a mortgage deed of sufficient real property in Murray County, and pay the fee for recording the same, all without trouble or expense on the part of said Swift; said deed for securing payment of saidnote. If I shall do all the above this bond will be void, else remain in full force.

Signed and sealed, Nov. 29, 1847.

THO'S CROW, [SEAL]

Test, M. B. Owenby,

Wm. G. McCarson."

The declaration charged that Crow had not given the security or the mortgage, as stipulated.

On the trial, the bond was introduced, and it was admitted that the note referred to had been sued on, and judgment obtained at that term against James and Thomas Crow, for the whole of the principal and interest Here the plaintiff closed his case.

Whereupon, defendant moved to dismiss the cause, on the ground that the proof did not make out the case—which the Court sustained, and dismissed the case; and this decision it alleged as error.

Swift; Milner, for plaintiff in error.

Walker, for defendant in error.

By the Court.—Starnes, J., delivering the opinion.

Whether or not the amount that a party to a bond like that before us agrees to pay upon condition, is in the nature of stipulated damages or of a penalty, is frequently a matter of no little difficulty to determine. One thing in this connection seems clearly settled, viz.: that the policy of the Courts, is, if possible, to view such sum as in the nature of a penalty. (Ch. on Con. 862, and see cases there cited.)

Notwithstanding this, if the agreement provide that a certain sum shall be paid in the event of performance or nonperformance of a particular specified act, in regard to which darn-ages may arise in case of default, and there be no words evincing an intention that the sum reserved in case of a breach shall be viewed only as a penalty, such sum may be recovered as liquidated damages. (Leighton vs. Wales, 3 Mees. & W. 545. Ch. on Con. 866.)

But where the covenant is to perform several things or pay the sum specified, and the claim may extend to the breach of any stipulation, in such case, it seems to be well settled, that the sum specified should be considered in the nature of a...