10 Mich. 188 | Mich. | 1862
Lead Opinion
The plaintiffs in error were to have one dollar fifty cents per thousand feet for drawing the timber, one dollar-of which was to be paid as the timber was drawn, in supplies to enable them to carry on the job, and the remaining fifty cents in cash, when all the timber was drawn. In the language of the contract, “ it being understood that the balance kept back is to secure the completion of this contract; and it is hereby agreed between the parties that the fifty cents per thousand feet is settled, fixed and liquidated damages, in case this contract is not completed by the said first party.”
They having failed to draw all the timber, the question is whether the fifty cents per thousand feet on what was drawn, and which was to be paid on completion of the contract, is to be regarded as stipulated damages, or in.
The damages recovered by the plaintiff (defendant in error) were less than $100, and within the exclusive jurisdiction of a justice’s court; and it is insisted the Court erred in allowing him costs. The bill of exceptions states they were allowed because the plaintiff’s claim as established on the trial exceeded $200, and was reduced by set off. We see no error in this, as the statute provides that, when the plaintiff shall recover any sum, he shall recover costs, if it appear that his claim, as established at the trial, exceeds $200, and the same was reduced by set off The judge, and not the jury, as it was insisted on the argument, is to determine that fact.
The judgment must be reversed, and a new trial granted.
Concurrence Opinion
I concur in the opinion of my brother Manning. It is very clear that the fifty cents per thousand feet was never estimated by the parties as the actual or probable damages to result from a breach, and that in fixing upon this sum they had no reference to the idea of compensation. It is therefore, in its nature, but a penalty, and even if the parties intended it should be actually paid, the law will not enforce it; and only such actual damages can be recovered on the contract, as may be shown by the proof.
Judgment reversed.