160 Ga. 90 | Ga. | 1925
On March 15, 1923, the physical property and franchises of a railway company were put up and exposed for sale as a going concern by the receiver under an order of court passed in receivership proceedings. Tuten submitted an offer to purchase the property at the price of $50,001. Payments of the purchase-money were to be made as follows: $5000 in cash on acceptance of this offer. The bidder was to be allowed until 12 o’clock noon of April 2, 1923, to determine whether or not he found himself able to carry out the purchase, and to notify the court of his decision. If he notified the court on or before the hour and date stated that he was unable to carry out the purchase, his deposit of $5000 was to be' then returned to him by the receiver, and the bid of $50,000 previously submitted by another bidder was to be- automatically accepted and confirmed, and the property was to be conveyed and delivered to such other bidder. If Tuten notified the court, on or before the hour and date named, of his intention and ability to carry out his purchase, he was then to be appointed by the receiver as general manager in. charge of the operation of the
1. Where property and franchises of á railway corporation were, under order of court, put up and exposed for sale by a receiver, and a person submitted to the receiver an offer to purchase such property and franchises at a given price and upon certain terms and conditions specified in such offer, the acceptance of such offer by the court and the payment by the bidder of the first installment of the purchase-money constituted a contract of purchase.
2. If the parties agree, in their contract, what the damages for a breach shall be, they are said to be liquidated; and unless the agreement violates some principle of law, the parties are bound thereby. Civil Code (1910), § 4390.
(«) The language of the instrument itself, although not conclusive on
(6) Where the parties to a contract agree upon and fix the damages, not as a penalty, but as stipulated and liquidated, and so write it down in the agreement, such damages will be treated as liquidated and the parties will be bound thereby, unless the agreement violates some principle of law. Goodman v. Henderson, 58 Ga. 567. If such damages are unreasonable and not actually intended by the parties to be liquidated, the law will give only actual damages; and in all cases where the damage is capable of computation and is not uncertain in its character, such stipulations will be declared to be penalties. Civil Code (1910), § 4391.
3. Where the purchaser of the property and franchises of a railway company at receiver’s sale, at the price of $50,001, paid or deposited with the receiver $10,000 of the purchase-money, but failed to pay the remainder of the purchase-price within the time agreed upon, the receiver retaining possession of the property until the purchase-money was paid in full, and operating the property through the purchaser as his general manager, the compensation of the latter being the net earnings of the railway earned while so managed by the purchaser, a stipulation in the contract of purchase, prepared and inserted therein by the purchaser, which provided that if the purchaser did not pay the receiver, at the time agreed upon, the balance of the purchase-price, then said deposits of $10,000, or such portion thereof as might not be necessary to pay loss or damage claims arising during the time of the purchaser’s administration as general manager, were to be held and retained by the receiver as liquidated damages for his failure to carry out his purchase, such stipulation, under the facts, was one for liquidated damages, was not unreasonable, and violated no principle of law. Allison v. Dunwody, 100 Ga. 51 (28 S. E. 651); Martin v. Lott, 144 Ga. 660 (87 S. E. 902).
{a) The amount of the stipulated damages is fixed and certain, to wit: $10,000; and the fact that the allocation of the damages is uncertain does not render this stipulation one of penalty and not for liquidated damages.
4. Applying the above principles, the trial court did not err in refusing to order its receiver to refund to the intervenor the above deposits on the purchase-money of this property.
Judgment affirmed.