13 N.Y.S. 501 | N.Y. Sup. Ct. | 1891
This action was brought to recover the sum of $5,000 as liquidated damages for the breach of a contract entered into between these parties on the 19th of March, 1886. By this contract the defendant and his partner, William Kurtz, sold and transferred their business, plant, machinery, tools, fixtures, stock on hand, and all appliances used in their business, or connected with it, together with its good-will, to the plaintiff for the sum of $14,000; and the contract by which the sale was made contained the covenant that “it is further understood and agreed between the parties hereto that the said Frederick A. Bingler shall not carry on the same line of business, (the
But it was insisted on behalf of the defendant that his liability was exclusively one for damages, and that the plaintiff was not entitled to recover this sum of money without proof, which was not made in the case, that an equivalent amount of damages had been sustained from these acts of the defendant. But it is quite plain that no amount of evidence could present any intelligible criterion for estimating or ascertaining the damages which would be sustained by the plaintiff by reason of the defendant carrying on and pursuing this same line of business; and it is to be inferred, therefore, because of that fact, that the parties themselves fixed this sum as an amount the plaintiff should become entitled to demand in case of a violation of this part of the agreement by the defendant. Whether a sum of money mentioned in this manner is to be regarded as fixed damages or as a penalty depends upon the intention of the parties, to be ascertained from the agreement and the business or transactions to which it shall relate. This agreement has plainly expressed the intention to have been that the sum of $5,000 should be paid by the defendant for a violation on his.part of the agreement made by him with the plaintiff. And the inability of producing and presenting proof of the actual extent of the damages which might be incurred by reason of a violation of the contract by the defendant is a circumstance also indicating that the parties intended this sum of money to be the fixed and settled measure of the defendant’s liability. And where that may appear to be the condition of the case, there it has been the constant practice of the courts to sustain the agreement as it has been expressed, and to hold the party entitled to its observance and performance to be vested with the right to recover the amount mentioned as stipulated damages, when the covenant shall be shown to have been broken. Kemp v. Ice Co., 69 N. Y. 45, 58; Little v. Banks, 85 N. Y. 258. There was therefore no error on the part of the court in ruling this point against the defendant.
A large number of exceptions were taken by the defendant’s counsel upon rulings made concerning the admission and exclusion of evidence. The first in its order to which attention has been drawn by the counsel was the offer to read an advertisement published in the New Yorker. But this objection amounts to nothing whatever, for it was specifically confined to the ground that the date of the clipping was not shown, while the witness testified before the evidence was received that it must have been printed not earlier than November, 1887. This fully answered the objection, and rendered the exception which was taken conspicuously frivolous. Evidence was proposed to be given, and was given, but afterwards stricken out by the court, of conversations which were stated to have taken place between these parties prior to the time of the execution of the contract, concerning the right of the defendant