18 N.M. 358 | N.M. | 1913
OPINION OP THE COURT.
In Fox v. Ryan, 240 Ill. 391, 88 N. E. 974, the reason-for this doctrine is well stated:
“The vendor of property is not required to accept a purchaser without opportunity for investigation as to his ability to comply with the terms of the contract, but where he-does accept such purchaser, uninfluenced by fraud or misrepresentation, it is a determination by him of the purchaser’s ability to perform his contract, and, if the purchaser afterwards fails to perform it, the seller cannot defeat the broker’s commission on the ground that the purchaser was not able to buy the property.”
Appellant insists that the contract is not enforceable because of the provision in regard to the notes deposited by the parties in escrow “as evidence of good faith and as a forfeit” for non-performance. In his answer the appellant alleged that these notes were given for the purpose of indemnifying the party not in default in damages. The contract, however, speaks for itself, as its language is plain. It appears conclusively that the notes were given simply for the purpose of securing the performance of the contract. The word “forfeit” in its ordinary use in eases of contract is synonymous ^yith “mulct, fine or penalty.” State v. Baltimore & O. R. Co., (Md.) 12 Gill & J. 399, 38 Am. Dec. 319, and see other cases cited in Words & Phrases, vol. 3, p. 2893. In the case of Van Burén v. Digges, 52 U. S. (11 How.) 461, 467, the Court said:
We do not decide that a provision for liquidated damages in a contract such as this renders it unenforceable, but that in this case the .provision considered is plainly in the nature of a penalty to secure the performance of the contract, which of itself is no bar to specific performance.
There is no error disclosed by the record and the judgment is therefore affirmed.