146 Mich. 119 | Mich. | 1906
A contract to furnish and install certain apparatus for the manufacture of gas in a plant, the buildings for which and certain foundations for apparatus were to be constructed by the owner, contained the following;
“The aforesaid apparatus and holder to be ready for gas August 15, 1902. The contractor will forfeit $25.00 for every day that above is not ready for gas beginning September 1, 1902, labor troubles excepted.”
The contract called for the payment of $11,438, and the owners paid all of this but $1,450. In a suit by the contractor to recover the balance, defendant, under proper pleadings, introduced testimony tending to prove delay of
While the language of the contract is “will forfeit’’instead of “will pay,” we are not for that reason driven to the position that an absolute infliction of a penalty, regardless of the nature or extent of the cause of the stipulated default or the extent of resulting injury, was intended instead of a provision for compensation for damages likely to result from such default. And when the testimony and all circumstances surrounding the making of the contract áre considered, they leave no doubt that the agents of both contracting parties understood that they were stipulating for damages likely to result from default of the contractor and not for a penalty or forfeiture as such. Under date August 8th, and again under date August 25th (the contract is dated March 6, 1902, and gas was first turned on October 31, 1902), defendant wrote to plaintiff a letter, in which the default and the result thereof are described and attention directed to the
The judgment is affirmed.