90 Mo. App. 171 | Mo. Ct. App. | 1901
The defendant’s contention is, that clause thirteen of the contract in respect to the payment of the cost of the switch in the event of the stone company’s failure to furnish the agreed amount of freight, should be construed as a penalty. In construing the contract with a view to ascertain whether the amount stipulated to be paid is a penalty or liquidated damages, the subject-matter of the contract, the language employed and the intention of the parties should be considered. The situation of the stone company was this; it owned a stone quarry that was valueless for want of transportation facilities, but which would be valuable if its products could be transported, by rail from the grounds, to market. The plaintiff owned and operated a nearby railroad that reached markets
II. The evidence does not authorize us to pronounce the contract unconscionable and to afford equitable relief on that ground. There is no pretense that the defendants did not enter into the contract freely and voluntarily with all the facts before them, and it must therefore be construed according to its true meaning and intent to be ascertained from the language employed to express that intent. Chase v. Allen, 13 Gray 42;
The actual damages sustained by the plaintiff, on account of the breach of performance of the contract alleged, are not definite and certain, nor are they “susceptible of definite ascertainment” and we think the intention of the parties is “plain and palpable” that the amount agreed on should he the measure of the plaintiff’s damage for a breach of the performance of the requirements of paragraph thirteen of the contract. We can not say that the amount agreed to be paid for a breach of performance of paragraph thirteen is disproportionate to the probable damages, in view of the fact that the switch was constructed for the especial accommodation and use of the stone company and was of no appreciable value to plaintiff after the stone company ceased to ship quarry products over it.
The judgment is affirmed.