111 Iowa 693 | Iowa | 1900
Courts are not even agreed that the intention of the parties is of controlling importance. Christiancy, J., in Jaquith v. Hudson, 5 Mich. 123, declared: “The attempt to place this question upon the intention of the parties, and to make this the governing consideration, necessarily implies that, if the intention to make the sum stipulated damages should clearly appear, the court would enforce the contract according to that intention. To test this, let it be asked whether in such a case, if it were admitted that the parties actually intended the sum to be considered as stipulated damages, and not as a penalty, a court of law would enforce it for the amount stipulated. Clearly, it could not, without going back to the technical and long-exploded doctrine, which gave the whole penalty of the bond, without reference to the damages actually sustained. Courts would thus be simply changing the names of things, and enforcing under the name of stipulated damages what in its own nature is but a penalty. The real question in this class of cases will be found to be, not what the parties intended, but whether the sum is in fact in the nature of a penalty; and this is to be determined by the magnitude of the sum in connection with the subject-matter, and not at all by.the words or the understanding of the parties. The intention of the parties cannot alter it. While the courts of law gave the penalty of