1. when-voi tintary payments be recov1. This action was brought to recover back the sum ° of $1708.27, which the complaint alleges was paid to the defendant in excess of the amount due • to him for all the staves and timbers received by the plaintiff under the written contract of the parties entered into on the 4th day of February, 1884, and exhibited with the defendant’s answer. As the plaintiff rested his right to recover upon the ground that the sum demanded was paid on a consideration that had failed, or under an agreement cancelled by mutual consent, the fact that the payment was made voluntarily could not defeat his action. The seventh instruction requested by the defendant was therefore inapplicable to the facts of the case and was properly refused.
2. .Penalty from liquidated 2. Nor was it error to refuse the request of the defendant to charge the jury that the damages recoverable for a breach of the eighth clause of the contract were liquidated by the stipulation embraced in the ninth clause. By the latter it was provided that if Rosengrant should remove the staves or timber from any of the lands mentioned in the preceding clause, before paying for the timber contracted for cn other lands, he should “ make Glasscock secure in the sum of $1000 for the faithful counting, marking and paying ” for all the timber which would still remain to be taken and paid for. The terms used by the parties in this provision of the agreement import an intention that the sum. stated should be treated as a penalty, and not as fixing a a measure of damages. And the disproportion which would exist between the sum mentioned and the injury resulting from a failure to pay for any except a large quantity of the timber is so great that it raises a strong presumption against the interpretation insisted upon by the defendant. 1 Sutherland on Damages, 478-480-490. The obligation directly created by the ninth clause was only such as would have been imposed by a separate instrument, executed in the form of a bond and conditioned for the performance of the-agreement to which it refers. The giving of the security there provided for was a condition precedent to the right of the plaintiff to remove the timber in township 17 before paying for the timber to be found elsewhere. But a performance of this condition appears to have been waived by permitting the removal of the timber without first complying with its requirements. And it cannot be resorted to now for the purpose of increasing the defendant’s damages. The jury were correctly charged that the measure of damages recoverable for the plaintiff’s failure to take any part of the timber was the difference between the agreed price of such timber and its market value at the time the contract was thus broken.
3. Errorasto nominal dama- • 3. It was admitted that the plaintiff neither took nor paid for any timber on 2000 acres of land embraced in the contract and to which the defendant had title. And the jury were instructed that for this breach of the contract the defendant was entitled to recover damages. As they awarded none whatever, it is argued that the verdict cannot be sustained. But the jury were required to find specially whether the defendant was damaged by the plaintiff’s failure to take the timber referred to. The answer returned to this question was that no actual damages had been sustained. And the failure to assess nominal damages is not a ground on which the general verdict can be properly disturbed. Buckner v. Railway, 53 Ark., 16.
4. Conciuí'ount rendered’ 4- One of the assignments in the motion for a new trial is based upon the court’s refusal to charge the jury to the effect that unless the account rendered to the defendant on the 1st day of January, 1885, was objected to within a reasonable time, it became an account stated, and could not afterwards be impeached except for fraud or mistake. We understand the rule to be that a stated account is not binding as such unless both parties either expressly or impliedly assent to it as being correct, x Wait’s Actions and Defenses, p. 192, and cases cited. The account rendered in this case does not appear to have been intended as a final adjustment and settlement of the transactions to which it relates ; and there was no express agreement that it should be so regarded. The failure however of the defendant to make any objection to it before the institution of this suit was sufficient to raise an implication of his assent to it as correct. But the plaintiff has insisted upon no such implication, and on the trial the defendant did not treat the account as being conclusive against himself. The instruction requested was therefore properly refused, and the charge of the court with reference to the account rendered was substantially correct.
5._ wheniimnation begins to run-i. The money sued for was paid or advanced in 1884. J J 1 But the contract allowed three years from the 4th of February in that year in which to remove the timber, on the purchase of which the payments were made. And it appears from the evidence that neither of the parties finally abandoned the contract or treated it as cancelled until the fall of 1886 or the spring of 1887, the last item on the set-off of the defendant being charged in the latter year. This suit was begun on the 22d day of February, 1889. So long as the plaintiff continued to receive timber under the contract or had the opportunity to receive timber equal in value to the amount of money advanced to the defendant, there was no failure of the consideration on which the money was paid ; and until such failure, no cause of action accrued to recover back any sum as an overpayment. The evidence was not therefore such as would have warranted a finding in favor of the defendant on his plea of the statute of limitations, and he was not prejudiced by the court’s refusal to give an instruction applicable to that issue.
6. Practice as to new trials, 6. The sum allowed the defendant by way of set-off was as . . large as the evidence warranted the jury in finding due to him for timber received by the plaintiff and not credited on his account. In the motion for a new trial it was not objected that the verdict obtained by the plaintiff was excessive; and no complaint against it on that ground can therefore be made here. Johnson v. Barbour, 28 Ark., 188; Wilson v. State, 51 Ark., 212. The evidence was sufficient to sustain it.
