Cimarron Land Co. v. Barton
51 Kan. 554
Kan.
1893
Check Treatment

The opinion of the court was delivered by

Horton, C. J.:

The trial court rendered judgment in favor of Mrs. Belle Barton, the plaintiff below, and against *557the Cimarron Land Company, for the sum of $5,000, without any evidence showing or tending to show the actual damages which Mrs. Barton sustained from the breach of the written bond or contract sued upon. The bond or contract is clearly a penal one, and the $5,000 cannot be considered as liquidated damages. The recovery upon the bond must be limited to the actual damages sustained. (Heatwole v. Gorrell, 35 Kas. 692; Condon v. Kemper, 47 id. 126, and cases cited.) Therefore, as the bond shows that the parties fixed the sum of $5,000 as a penalty, to recover thereon any damages which might result from a breach thereof, the trial court committed error, in the absence of evidence of actual damages, in rendering judgment for $5,000.

It is also claimed that the petition is defective in its allegations. As the petition was not attacked by motion or demurrer, and as an answer was filed, of course, upon the objection to the introduction of evidence, a liberal rule of construction must prevail. But as the case must go back for further proceedings, it will be advisable for the plaintiff below to state more clearly the averments upon which she relies to recover.

Other errors are alleged, but as a new trial is to be had these need not be commented upon. The judgment of the district court will be reversed, aud the cause remanded for further proceedings.

All the Justices concurring.