115 Ga. 985 | Ga. | 1902
Malony, who carried on business under the name of Malony Directory Company, brought an action against Foote & Davies Company, a corporation, for the recovery of an amount of money which he alleged was due him for certain expenses which he, in accordance with a contract between them, had incurred and paid in behalf of the defendant, and for which, under the contract, the defendant was to reimburse him. The defendant admitted the execution of the contract and that it had become indebted to the plaintiff in the amount for which he sued, but pleaded that the plaintiff had violated a certain stipulation in the contract, and was, therefore, indebted to it in the sum of five hundred dollars, as liquidated damages, under the following provision ■ of that instrument: “Foote & Davies and Malony Directory Co. mutually agree, if either fails to carry out their part of this contract, that the party failing is to pay to the other party the sum of five hundred dollars, besides all damages sustained by reason of such failure.” The main question which we are called upon to decide is, whether the sum which the parties here agreed should, in the event of a breach of the contract, be paid by the party violating it to the other party, was, as claimed by the defendant, liquidated damages, or, as claimed by the plaintiff, a penalty. The court below held it to be a penalty, and, as the defendant proved no actual damages, directed a verdict in favor of the plaintiff for the amount sued for.
Judgment affirmed.