Mansur & Tebbets Implement Co. v. Tissier Arms & Hardware Co., 136 Ala. 597

136 Ala. 597 | Ala. | 1902

DOWDELL, J.

The plaintiff sues to recover the sum of five hundred and sixty-six and 60-100 dollars ($568.60), that, being the twenty per cent, stipulated to be paid in the contract described in the complaint. The only question is, whether the sum agreed to be paid is to- be considered by the court as a penalty or as liquidated damages.

In Keeble v. Keeble, 85 Ala. 552, this court, in a well considered case, and after reviewing the authorities, has laid down certain rules which in a great measure furnish. a safe guide in the solution of a question which has so much embarrassed the courts in its determination. Without repeating all of the rules or canons there stated, we will here mention two, • which we think applicable, and seem to be conclusive of the case before us:

“6. When the contract provides for the performance of several acts of different degrees of importance, and the damages resulting from the violation of some, although not all of the provisions, are of easy ascertainment, and one large gross sum is stipulated to be paid for the breach of any, it will be construed1 a penalty, and not as liquidated damages.'’

“7. When the agreement provides for the performance of one or more acts, and the stipulation is to [jay the same gross sum for a partial as for a total or complete breach of performance, the sum will be construed to be a penalty.”

In the contract described in the complaint the agreement is to pay 20 per cent, of the invoice price of the goods ordered of the plaintiff, if the defendant countermanded the order in whole, or in part, or delayed the order beyond the then season. That the measure of damages in the event of a breach in either of the particulars named, would be a matter of easy ascertainment seems, clear, and equally plain that the damages ivould not be the same for the different breaches. The case we think fairly falls within the influence of the rules of construction above stated. That the parties to the contract de-

nominate the sum to be paid for a failure of performance liquidated damages, can make no difference. On the authority of Keeble v. Keeble, supra, as 'well as other oases hereafter cited, we hold that the amount stipulated in the contract is a penalty and not liquidated damages. — Henry v. L. & W. R. R. Co., 91 Ala. 585; McPherson v. Robertson, 82 Ala. 459; Watts’ Execs. v. Sheppard, 2 Ala. 445; Graham v. Bickham, 1 Am. Dec. 328, and note to this case containing full discussion of the question; Williams v. Vance, 30 Am. Rep. 26, and note.

There is no error in the record, and the judgment appealed from will be affirmed.