85 N.J.L. 193 | N.J. | 1913
Lead Opinion
The opinion of the court was delivered by
The city of Summit, in 1907, on the application of the defendant company, passed an ordinance granting leave to it to construct and operate a trolley line through the city streets, upon certain conditions specified in the ordinance and agreed to by the company. These conditions were many in number and of varying importance. Some of them related to the construction of the road, others to the operation thereof, and still others to the payment to the city of compensation for .the privilege of using the city streets. Most of those relating to construction and operation carried with them a specific penalty for violations thereof by the company. The ordinance also contained a provision that the company should, at the time of its acceptance thereof, give a bond to the city, with sufficient surety, in the sum of $5,000, with a condition that the company and its successors should fully and faithfully keep, observe and perform all the provisions of the ordinance on its part to be kept, observed and performed. A bond was given in accordance with this provision, and the present suit is brought to recover the damages alleged to have been sustained by the city by the failure of the company to perform diverse duties imposed upon it by different sections of the ordinance. The breaches alleged having been proved at the trial, the court found for the plaintiff, but, no special damage having been proved to have been sustained by the city, only nominal damages were permitted to be recovered by it, the court holding that the payment called for by the bond was by way of penalty and not as liquidated damages. The plaintiff now seeks to review the ruling of the trial court upon this point.
We think the view of the trial court that the bond in suit provided a penalty for a breach of any of the conditions
We deem it proper to say that we have not reached the conclusion expressed without a consideration of the cases of Clark v. Barnard, 108 U. S. 436; City of Salem v. Anson, 40 Oreg. 339, and City of Indianola v. Gulf, Western, &c., Railroad Co., 56 Tex. 594, relied upon by counsel for plaintiff in error in support of his contention. They are each of them cases where the ascertainment of damages for the breach of a single stipulation contained in the agreement was involved, and so come within the first division of the rule which we have said prevails in this state, and are in accord with it. The opinions themselves, as we read them1, do
The judgment under review will be affirmed.
We' are not to be understood, however, b}7 our affirmance of this judgment as approving the form in which it is entered. The consicleratum est is that the plaintiff do recover against the defendants “its said damages by the court, in form aforesaid, found to be the sum of six cents, and by the court now here adjudged to the said plaintiff,” &e. The bond in suit, being one for'the payment of money, the fifth section of our act concerning obligations (Comp. Stat. 3778) required that the judgment should be entered for the penalty of the bond; the execution thereon issuing only for such damages’ as were assessed. The wisdom of the statutory provision referred to is peculiarly apparent in a case like the present, where the bond is intended as an indemnity against breaches of various and unrelated conditions; for the judgment is not only in satisfaction of the damages resulting to the plaintiff from the breach sued upon, but stands as security for future breaches. Roll v. Maxwell, 2 South. 568. But as the form of the judgment is not attacked by any assignment of error, this defect cannot be made a ground of reversal.
Dissenting Opinion
(dissenting). In this suit upon a bond in the penal sum of $5,000, breaches of condition were proved and a judgment entered for’six cents. The effect is that the bond is merged in the judgment and six cents is all the city can ever recover. The judgment should have been entered for the penalty and execution issued for the proper amount from time to time. This, however, is a mere technical or perhaps clerical error. My real objection to the result is that the opinion of the court precludes' any substantial recover}7, not only on this bond, but on any bond that may be taken by a municipality to secure- the performance of public obligations; for it can rarely happen that the municipality as such is damaged'by failure to perform. The damage is to the public not to the municipality. The reason for the rule on
For affirmance — The Chancellor, Chief Justice, Garrison, Trenchard, Parker, Yoorhees, Kaltscií, Yreden-BUEGH, CONGDON, WHITE, T.ERHUNE, JIbPPENHEIMER, JJ. 12.
For reversal — Swayze, M intuen, JJ. 2.