13 Abb. Pr. 427 | New York Court of Common Pleas | 1872
This action was brought upon an alleged agreement of the defendant, dated December 11, 1871, to pay for nine copies of a literary work, called “Universal Biography,” that was to be published by the plaintiff, at the rate of fifty-five dollars per copy, which price was to be paid, one half when the proof sheets of a sketch of defendant’s life should be issued. It was also stipulated that if the matter for such sketch was not furnished by the defendant within ten days from the date, the subscription money was to be paid at that time to apply on the work referred to or to a future
Second. In my opinion, by the true construction of this agreement, the sum of one hundred and sixty-five dollars, the price of three copies of the work agreed to be paid for each day that elapsed from December 21, 1871, until the sketch and photograph were furnished, was intended simply by way of penalty. It is not stated to be intended as liquidated damages, and it is not possible that the parties ever contemplated that for absolute failure to furnish any sketch the extravagant and absurd result would ensue, that the defendant should be liable to pay one hundred and sixty-five dollars a day for all time to come as compensation for plaintiff’s uncertain, loss, arising, from defendant’s continued failure to furnish the sketch. Under the construction claimed, and upon which plaintiff has acted, if, in avoidance" of any question that might arise from the statute of limitations, the suit were de