| N.C. | Dec 5, 1845
This was an action for debt for $1,000, upon the following instrument, to wit:
"Know all men by these presents, that I, Asa Anesley, do contract and agree to and with Jonathan J. Lindsay that I will execute to the said *142 Jonathan J. Lindsay, his heirs or assigns, a deed of bargain and sale for a tract of land lying in Washington County, containing by estimation 165 acres, more or less, it being a tract of land recently conveyed by me to Thomas B. Myers for the sum of $651, the said Thomas B. Myers (187) having executed to me, the said Asa Anesley, a contract to reconvey the said land to the said Anesley whenever he, the said Anesley, should pay back to the said Myers the said sum of $651: now, when the said Jonathan J. Lindsay shall furnish the said Anesley with the said sum of $651, with which the said Anesley is to pay the said Myers and redeem the said land bargain and sale by him, the said Anesley, to him, the said Myers, then the said Anesley doth contract and agree with the said Lindsay that he, the said Anesley, will execute to the said Lindsay a firm deed of bargain and sale in fee simple for the aforesaid premises, the said Lindsay agreeing to pay the said Anesley the sum of $950 for the said land; and it is agreed by and between the parties that the following shall be the modes of payment: that the said Lindsay, after furnishing the said Anesley the aforesaid sum of $651 to redeem the said land, shall be permitted to pay the balance in good notes (that is to say, notes of hand, which the said Lindsay agrees to guarantee), and, for the faithful performance of the covenants contained in this agreement, the parties to this agreement do bind themselves in the sum of $1,000, to be collected out of either party refusing to comply with the terms of this agreement." (Signed and sealed by the parties.)
A breach of the agreement on the part of the defendant having been proved, the sole question presented to the court was whether the damages for the nonfulfillment of the obligation were liquidated or otherwise. The court held they were not liquidated, the $1,000 mentioned in the instrument being in the nature of a penalty, and instructed the jury to assess the actual damages. The jury returned a verdict in favor of the plaintiff for the sum of $87.27. The court refused, on motion of the plaintiff, to grant a new trial, and judgment being rendered according to the verdict, the plaintiff appealed.
The defendant was the owner of a tract of land lying in the county of Washington, encumbered with a mortgage to one Myers for $651; he contracted, by the instrument of writing mentioned in the case, to sell it to the plaintiff for $950; and in the said deed is this stipulation or condition: "For the faithful performance of the covenant contained in this agreement the parties to these presents do bind themselves in the sum of $1,000." The defendant refused to convey, and the plaintiff brought this action of debt against him; and under the statute he, in his *143
declaration, assigned as a breach the refusal of the defendant to convey after he had been requested to do so, and stated his damages to be $1,000. The defendant pleaded "Conditions performed" and "Conditions not broken." On the trial the plaintiff prayed the court to charge the jury that they should give him $1,000 in damages, as he contended that the damages had been liquidated by the parties themselves. The court refused to comply with this prayer, and the jury gave damages to the amount only of $85.27, for which sum the court gave judgment, and the plaintiff appealed. The word "penal" is omitted in the sentence in the deed next before the words, "sum of $1,000," and from that omission the plaintiff now construes the instrument of writing to stipulate for liquidated damages. That word being left out of the deed will not, it seems to us, make the sum of money inserted stand as liquidated damages in case of a breach of the covenants by either of the parties to them. From a view of the whole instrument, the sum appears to have been inserted as for a penalty. Suppose that Anesley had tendered a deed of conveyance, and Lindsay had refused to accept it and pay the purchase money, would it for a moment be supposed that Anesley could have kept (189) the land and also recovered of Lindsay 1,000 as liquidated damages? Such a construction would at once shock common sense. We see that each party to the instrument is bound in it under the same identical sum ($1,000) to keep his covenants, and if it would not have done to have enforced it against Lindsay as liquidated damages in case he had failed to comply with his covenants, neither will it now be right to make such a construction against Anesley on his failure to comply with his covenant. The quantum of damages in an action of covenant may be assessed by the jury when the precise sum is not the essence or substance of the agreement. The $1,000 was not the essence of this contract; the substance of the agreement was that one should convey the land and the other should pay the stipulated purchase money. The $1,000 was intended to cover, as a penalty, all such actual damages as either party might sustain in consequence of any breach of their respective covenants. We have examined the cases cited by the plaintiff's counsel, and they by no means, as we think, establish the doctrine he contends for. In Lowe v. Peers, 2 Burr., 2225, Peers covenanted as follows: "I do hereby promise Mrs. Catherine Lowe that I will not marry with any other person beside herself; if I do, I agree to pay to the said Catherine Lowe £ 1,000 in three months next after I marry anybody else." Peers afterwards married Elizabeth Gardner. The breach assigned upon the covenant was in the nonpayment of the £ 1,000. The court held that the payment of this sum was the very substance of the agreement. There was no other standard by which the intention of the parties as to the damages for a breach of the covenant could be measured. So, if a lessee covenants with *144
his landlord not to plough up meadow, and, if he does, he will pay £ 5 an acre for every acre ploughed up: this sum is liquidated damages — it is the essence of the agreement. In Fletcher v. Dyche, 2 Term, 32, (190) the covenantor agreed to repair a church for a certain sum of money; and he furthermore agreed to do and find all the necessary smith's work and ironmonger's work in six weeks from the date of the covenant, for £ 118, 18s; and he agreed in the deed that if the smith's and ironmonger's work was not done within the time mentioned, he would pay to the covenantee the sum of £ 10 for every week after the expiration of the time agreed upon until the said smith and ironmonger's work should be completely finished. The court held that such weekly payments were not in the nature of penalties, but were liquidated damages; the object of the parties in naming this weekly sum was to prevent any altercation with respect to the question of damages; it would have been difficult for a jury to have ascertained what damages the covenantee had really sustained by the breach of the agreement; therefore, it was proper for the contracting parties to have ascertained it themselves by their agreement. It was like demurrage, so much specifically per week. Slosson v.Beadle, 7 Johns., 72" court="N.Y. Sup. Ct." date_filed="1810-11-15" href="https://app.midpage.ai/document/slosson-v-beadle-5472673?utm_source=webapp" opinion_id="5472673">7 Johns., 72, was a covenant to convey land, "or in lieu thereofto pay the plaintiff $800." So in Tingley v. Cutler,
Not so, we think; and the judgment must be
PER CURIAM. Affirmed.
Cited: Wheedon v. Bonding Co.,