28 Mo. 39 | Mo. | 1859
delivered the opinion of the court.
As none of the evidence is preserved in the.bill of exceptions but that which related to the breaches of the condition of the bond, the instructions given and refused concerning other matters can not be reviewed in this court, as, for any thing that appears, they have been rejected as irrelevant, not being warranted by the testimony. The main point presented for our consideration is whether the sums stipulated to be paid by the defendant for a violation of the condition of the bond was a penalty or liquidated damages.
They mistake the object and temper of our system of jurisprudence who, while maintaining that men in making all contracts have a right to stipulate for liquidated damages regardless of the disproportion to the sum resulting from a breach of the contract, insist that it would be hard if men were not permitted to make their own bargains. No system of laws would command our respect or secure our willing obedience which did not to some extent provide against the mischiefs resulting from improvidence, carelessness, inexperience and undue expectations on one side, and skill, avarice and a gross violation of the principles of honesty and fair dealing on the other. The folly of one in making a wild and reckless stipulation will not justify gross oppression in another. A just man when he sees one in a situation in which he is prepared to make a contract which must grind and
By the common law, if one bound himself in a penalty óf a greater sum for the payment of a less one — as if he bound himself in a penalty of two hundred pounds to pay at a given date one hundred pounds — if the less sum was not punctually paid at or before the day, the penalty was forfeited, and in an action at law upon the bond the whole of it was recovered. But courts of equity, seeing the hardship and oppression of this, interfered and granted relief on the payment of the sum really due with interest. This principle was so conformable to the dictates of natural equity, that Parliament, in the fourth year of Anne, incorporated it into the statute law and enabled courts of law to give the relief before only attainable in courts of equity; so, with regard to bonds by which the performance of other acts than the payment of money was secured by a penalty, at common law the failure to do the act, or any one of the acts whose performance was thus secured, caused a forfeiture of the penalty, and the whole of it was recovered in an action at law on the bond. Against these forfeitures courts of equity relieved the defendant upon his compensating for the damages he had actually sustained by reason of the breach of the condition of the bond. Here, as in case of bonds conditioned to pay money, Parliament, by statute, enabled a party to obtain in a court of law the relief which was afforded by courts of equity. The statute of .8 and 9 of William III. required, that in all actions upon any bond, or on any penal sum for nonperformance of any covenants or agreements contained in any deed or writing, breaches should be assigned, and that damages
Although courts of equity relieved against penalties, yet they did not interfere where the damages were liquidated. But whilst they acted on this principle, they did not suffer their jurisdiction to relieve against penalties to be evaded by the introduction of the words into the agreement “ not as a penalty, but as liquidated damages.” They acted as they did in the case of mortgages, in regard to which — having declared that what was once a mortgage was always a mortgage — they treated as a nullity and utterly discountenanced any contract by which the mortgagor’s right of redemption was impaired, or in any way attemped to be taken away — as they would act in the case of a usurious contract, where the borrower expressly agrees that the excessive interest should not be so regarded, but deemed a compensation to the lender for his
As the object of the statute, in requiring breaches to be assigned in actions on penal bonds conditioned to perform collateral acts, was to enable defendants to obtain that relief at law which had formerly only been afforded them by courts of equity, and as courts of equity, whilst they did not relieve against liquidated damages, yet would not suffer their jurisdiction to be evaded by calling a penalty damages, so courts of law, succeeding to the jurisdiction of courts of equity by virtue of the statute, will not permit the relief they are authorized to grant to be defeated by the shallow artifice of calling a penalty liquidated damages. The duty of the courts, in cases of this kind, is to ascertain when the sum stated is in fact a penalty and when it is properly intended as liquidated damages, as the just, appropriate and conventional amount sustained by the doing or not doing the act stipulated to be done or omitted.
It is obvious that every case occurring under this branch
The case before us, when examined, will be found to come within the principle above stated. The defendant bound himself in the sum of one thousand dollars to Basye & Bach-man as liquidated damages, not as a penalty, in consideration of certain acts to be performed by them, to go with them to California to dig for gold; to make his own clothing and shoes ; to furnish himself with a good gun, two good knives, belt, tomahawk, and all such weapons as might be deemed necessary for the trip. After he had reached California, he was, if required, to aid them for two months in building a dwelling-house and lots for cattle, and to assist
The thirteenth section of the ninth article of the practice act prescribes that in every petition, answer or reply, amen-datory or supplemental, the party shall set forth, in one entire pleading, all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defence. Nothing therefore could be more surprising than, in looking over the record in this case, to see an entry, that, by the agreement of parties, the original and amended answers are considered as one in the pleading. The provision is a very wise and salutary one, freeing courts and juries of great embarrassment and the parties from much unnecessary cost. It is hard to conceive how any court could arrive at the conclusion that it possessed the power, hy consent of parties, to
Affirmed;