13 N.H. 275 | Superior Court of New Hampshire | 1842
We do not perceive, from an examination of the contract upon which the suit is brought, nor has it
The first point for inquiry is, the construction of the contract. Did the defendant mean what in the contract he has plainly and pointedly said, or did he mean something else ? He has said that if the paper “ does not contain a true and proper method for making approved incorruptible teeth, he will, to said Brewster, on demand, pay one hundred dollars, truly and faithfully.” Did he mean that, in the contingency provided for, he would “pay one hundred dollars truly and faithfully,” or did he mean only that he would pay such damages as Brewster should sustain, if the contingency should happen ? It is obvious that the question is, whether the sum mentioned be a penalty, or liquidated damages.
If we were to attempt to reconcile all the contradictory decisions upon this question, we apprehend that we should find the difficulty said to exist by the court in Chamberlain vs. Bagley, 11 N. H. R. 234, an insurmountable one. Many of the decisions of the judicial tribunals, heretofore, have been based upon what is now admitted to be an insecure foundation; for the judgments have often proceeded, not upon the plainly expressed intention of the parties, in a case free from fraud or illegality, but upon the view which the court entertained of what would have been, on the whole, just, considering such circumstances as were «proved to exist. The dangerous uncertainty of such a mode is manifest, when the impossibility of placing any other person in the exact condition of the parties at the time the contract was made, is considered. Many motives influence them, many considerations weigh with them, which no other person could understand and appreciate, unless he could thoroughly identify
The case of Kemble vs. Farren, 6 Bing. 141, where the opinion of the court was pronounced by that very able judge, Lord Chief Justice Tindal, is one of those where the court seem to have attempted to place themselves in the position of the parties, and to have given what they considered an equitable effect to the contract, disregarding its express language. The defendant engaged himself to act as principal comedian at Covent Garden Theatre, for four seasons, and in all things to conform to the regulations of the theatre. The plaintiff agreed” to pay him 3l. 6s. 8d. every night -on which the theatre should be open during the four seasons. There was a clause in the agreement, that if either of the parties should refuse to fulfil the agreement, or any part thereof, or any stipulation therein contained, he should pay to the other the sum of £ 1000 ; to which it was agreed that the damages should amount, and which was declared by the parties to be
It may be very true, that where a large sum is to become' payable, in consequence of the non-payment of a small sum, and where this is all the contract, equity would relieve the party, by whatever name the large sum should be designated in the contract; and it may be very proper that such relief should be granted. And if we could assume that in Kemble vs. Farren a breach of any of the stipulations would have been followed by no inconveniences to those for whose benefit they were intended, excepting such as directly resulted therefrom, perhaps we might then say that the payment of a large
The enquiry then is, Avhat is the meaning of the contract ? The defendant’s language is, that if the receipt do not. con-.
An examination of this question has been necessary, that we might determine whether the case were properly referred to an auditor. Had it appeared that the defendant knew of the reference to the auditor at the term, and omitted to except thereto, probably such omission might be a waiver of the objection. But upon this point we are not informed, and the plaintiff has not contended that the exception, if it existed, has been waived by the conduct of the defendant, in omitting to. except when he knew of the reference. The exception appears to have been taken upon the first hearing before the auditor.
The act of June 23, 1822, N. H. Laws 377, (Ed. of 1830) provides that “ whenever it shall appear that an investigation of accounts, or an examination of vouchers is necessary, for the purposes of justice between the parties,” an auditor may be appointed, &c. In this case no account is to be investigated, and no voucher is to be examined. That the plaintiff should recover, he had only to prove the execution and the breach of the contract. The consideration of evidence on these points is particularly within the province of the jury; and if this case be a proper one for an enquiry by an auditor, it will be difficult to say that every case should not be thus referred. But the object of the statute was not
New trial.