10 Wis. 30 | Wis. | 1859
By the Court,
This was an action brought by the respondent against the appellant, for a sum claimed as stipulated damages, for failure to perform an agreement for the sale of a stock of goods, by the appellant to the respondent, By the agreement an inventory was to be taken, the vendee was to pay one-fourth of the amount down, and to execute and deliver to the vendor, three notes, secured by a chattel mortgage on the goods, one to be for $1800, the second for $1200, and the third for the balance. The agreement also contained the following provision: “ And it is expressly agreed that if either party shall refuse to perform this agreement, the party so refusing, shallforfeit and pay to the other party, the sum of one thousand dollars, as stipulated damages.
On the trial the defendant offered to prove that the goods were worth less than the plaintiff had agreed to give for them, and that he had suffered no actual damage. But on objection, the evidence was rejected, on the ground that the agreement had provided for the amount of damages in case of a failure to perform by either party. The only material-question presented on the appeal, is whether this ruling was correct.
The decisions on this subject are somewhat conflicting. On the one hand, they lean towards treating such provisions as in themature of penalties, and to do' so, have sometimes disregarded the positive and explict language of the parties
Thus, in Kemble vs. Farren, the agreement contained some provisions, upon the breach of which, the damages would have been wholly uncertain, and incapable of any definite ascertainment. But it also had others of a comparatively unimportant character, one of which was that the plaintiff should pay the defendant ¿63 6s. 8d., every night the theatre was open. And there was a clause that upon the failure of either party to fulfil his agreement, or any part thereof, he should pay to the other Ü1000, which was expressly declared to be “liquidated damages, and not a penalty, or in the nature thereof.” Yet, notwithstanding this language, which the court admitted to be as explicit as language could be; they held it to be a penalty, because, by the very terms of the agreement, it applied as well to a breach of the most unimportant provisions, where the actual damages was clearly ascertainable, as to those of a different character As, for in
The authorities upon the subject, both-English and American, are collected and reviewed in chap. 16 of Sedgwick on Measure of Damages. He deduces from them, among others, the two following propositions, which, we think, .fairly result from the authorities, and are. applicable to this case: 1. That if the sum be evidently fixed to evade the usury laws, or any other statutory provision, or to cloak oppression, the courts will relieve by treating it as a penalty. 2. That whére, independently of the stipulation, the damages would be wholly uncertain, and incapable of being ascertained except by conjecture, then the damages will usually be considered as liquidated, if they are so denominated in the instrument.
In this case there is nothing in the nature of the agreement, or in the amount fixed, that would warrant us within any of the authorities, in holding it a penalty against the express language of the parties. The exact amount of the stock of goods does not appear, but it does appear that it was more than $4000; how much more we cannot tell. It is not a case, therefore, where the court can see that the amount fixed is greatly disproportionate to the probable damage. And it is very clearly a case where, upon a breach, the real damages are incapable of being definitely ascertained. Who could form any accurate idea of the plaintiff’s damage ? How could
Having come to this conclusion, it follows that debt was the proper action, under the old system, it being for a sum certain, liquidated by the agreement of the parties. The demurrer was, therefore, properly .overruled, and the ruling of the judge on the trial was correct.
The judgment is affirmed with costs.
