| Colo. | Dec 15, 1884
Action at law upon a bond executed by the defendant company, conditioned for the reconveyance to plaintiff of certain property therein described, upon issuance of patent therefor to the company.
We deem it sufficient for the purposes of this case to say that the sum named in this bond must be viewed as penalty, and not as liquidated damages. There is nothing in the instrument itself, or in the evidence extraneous thereto, which justifies the conclusion that the parties intended to make $5,000 the exact measure of damages in case of failure to perform. There was no contract of sale; the conveyance to defendant by plaintiff was simply a matter of mutual convenience to both in obtaining patent to the premises; the evidence discloses no change of possession; plaintiff remained the equitable owner notwithstanding the transfer of the legal title; and the latter title was to be reconveyed upon issuing of the patent; plaintiff introduced no proof that this amount was considered by himself and defendant as liquidated damages.
A bond is said to be “prima facie a penal obligation; ” and the sum mentioned therein is not treated as liquidated damages unless other language used in the instrument, or accompanying circumstances, show that such was the'intention of the contracting parties.
The sum named in the bond being penalty, plaintiff was only entitled to recover such damages as he might suffer from breach of the condition specified. He neither proved, nor offered to prove, the extent of his injury, if any there were, under the contract; in view of the fact that defendant offered, and stood ready, to make the deed called for by the bond, it may be that no actual damages were sustained on account of the delay. Therefore, conceding that a technical breach of the bond occurred,
The clause in the judgment concerning the deeds deposited by defendant as a continuing tender imposes upon plaintiff no burden; it compels no action on his part; from it he can suffer no possible injury; the court would certainly not undertake to coerce his acceptance of these deeds .against his will. There would seem to be no good reason why we should reverse the judgment on this account, and direct a new one. This provision, if improper and irregular, may be regarded as surplusage. The judgment is affirmed.
Affirmed.