This was an action of debt, founded upon an arbitration bond, containing a penalty to secure the performance of the stipulations contained in the condition thereof, to be performed on the part of the defendant, and the same was defaulted. It is not pretended that the sum of the penalty is named in the bond as stipulated damages, eo no-mine ; but it is contended by the plaintiffs that, in the case of an arbitration bond like the present, the obligee, upon breach of the condition of it, is entitled to judgment for the penalty of the bond, and to an execution therefor.
Upon looking into the cases cited in support of this position, it may well be doubted whether they are intended to go that length, and to settle any such general principle. But it is not necessary to consider or decide that question now, for if such should be found to be the doctrine of the cases, it must yield to the force of legislation in this state. The question here depends upon the provisions of our statutes. By § 13, p. 511, 1 N. H. Laws, it is provided, “that in all causes brought before the superior court of judicature, or before the court of common pleas, to recover the forfeiture annexed to any articles of agreement, covenant, contract or charter party, bond, obligation, or other specialty, or for the forfeiture of real estate upon condition by deed of mortgage, or bargain and sale with defeasance, when the forfeit-
This section is not one of doubtful meaning or import. It most explicitly provides the rule of damages in cases like the present. It is not the penalty of the bond necessarily. That does not form the rule of damages. Indeed, the party is not to recover the penalty, as such, at all;—he is to have judgment for such sum only as in equity and good conscience he is entitled to receive at the hands of the obligor. In other words, he is to recover whatever damages he may in fact have sustained by reason of the forfeiture or breach of the condition of the bond, for nothing more “ is due according to equity and good conscience.”
The evidence laid before us upon the question that is made as to the amount of damages sustained, and the matters which are to be taken into consideration in determining tbe same, shows, that, after the arbitrators had one sitting, the defendant revoked their authority to decide the matters submitted, and to make an award. And it appears, also, that, by reason of the submission, two suits pending at the time, iu favor of the plaintiffs against the defendant, and embraced in the submission, were dismissed.
The costs of those actions are to be regarded as lost to the plaintiffs, as well as the costs of the arbitration incurred prior to the revocation of the authority of the arbitrators; and those two sums constitute the damages for which the plaintiffs are entitled to a judgment. The damages sought to be recovered in said actions form no part of the damages sustained, as the same, for anght that appears, may still be recovered by the institution of new suits for that purpose.
The plaintiffs are entitled, therefore, to judgment for such sum in damages, as, upon proper proofs, shall be made to
Let judgment be entered accordingly.