18 Johns. 219 | N.Y. Sup. Ct. | 1820
delivered the opinion of the Court. The principal question in this cause, arises on the construction of that part of the covenant declared on, which is contained in the -following words : “It is further agreed, that if either of the parties to. this agreement, shall refuse to fulfil this agreement, according to its true meaning and intent, the party refusing shall pay to the other party the sum of 500 dollars, which shall be considered as liquidated dama-gesJ’’ On the part of the defendant, it is admitted, that he is liable to pay 500 dollars, and on the payment of that sum, it is contended, the parties are placed in the same si-tuaiion they were before the covenant was made.
There is no doubt that if, upon a view of the whole instrument, it shall appear to have been the intent, that the damages stipulated should be received, in lieu of a perfor* manee of every thing covenanted to be done, and as an ex-tinguishment of the appraisement itself, then the defence is well founded. In order to determine this point, a careful examination of the agreement becomes necessary. The intent collected from the whole instrument, must be carried into effect, although there maybe a difficulty in reconciling all its parts. After an attentive examination, my judgment is convinced, that the construction contended for by the defendant was not contemplated by the parties, arid ought not to be sanctioned.
Itappears, that the plaintiff having mortgaged three farms to William Watts, for securing 5,000 dollars, and this mortgage having been assigned to the defendant, he had, by virtue thereof, sold the laud mortgaged, and then had possession of two of the farms. Divers controversies and suits having arisen concerning the premises, the parties were mutually inclined to bring the controversy to a close, by a submission to three individuals. The basis of the submission was, tsiat an appraisement of the land be made at its real value, .and be applied to the payment of the debt due from the plaintiff, and of all legal claims and charges of the defendant against him, without reference to the price the land
My opinion, then, is, that the set-off was properly excluded, that the plaintiff is not entitled to recover any thing for liquidated damages, and that the verdict was correctly taken for the 310 dollars and 67 cents. There is a further objection to the set off relied on at the trial$ the defendant had sold three farms under the mortgage, but it is no where stated for what sum they were sold. The defendant’s claim, including the bond and mortgage, was 6,326 dollars and 91 cents. At the trial, the defendant contended, that “ the whole bond assigned to him by Watts, stood in force,” and offered to set off 500 dollars, to pay the stipulated damages, and claimed to have the residue certified in his favour. If the defendant had been entitled to a set-off, it could only be for the amount remaining due, after crediting the money for which the land sold; yet, without offering any proof as to that point, the defendant claims the whole of the original debt without deduction. This was altogether inadmissible. The jury could not determine, from this statement, how much was allowable ; or whether, after crediting the amount of sales, enough remained to satisfy the 500 dollars ; and if there was more, how could they determine on the balance to be certified ? On this ground, also, the defence was correctly excluded. The plaintiff is entitled to judgment.
Judgment for the plaintiff.