151 P. 984 | Utah | 1915
Lead Opinion
The plaintiff and the defendant, at Salt Lake City, entered into this contract:
"This agreement made and entered into this 18th day of September, A. D. 1911, by and between the Western Macaroni Company, incorporated, of the first part, and Saverio Fiore, of the second part, both of Salt Lake City, Utah, witnesseth: That, in consideration of the exclusive purchase from' first party by second party of all domestic macaroni that second party may handle in any way in his business as a retail dealer in said Salt Lake City, Utah, and in consideration of the mutual benefits to each moving, it is agreed on the part of the first party that it will for and during two years hence after this date furnish and sell to second party, at regular and wholesale prices the same as charged to other retail dealers, such quantities of macaroni as second party may require in his business, in boxes containing about eighteen pounds net weight, and of quality satisfactory to second party and in consideration of the premises the first party agrees not to sell to any private consumer or to any boarding house keeper in or out of the State of Utah, and also agrees not to sell to any other proprietor of an Italian store in Salt Lake City, Utah, directly or indirectly, any of its product without the consent of second party, and in default or violation thereof undertakes and agrees to pay to second party the sum of five hundred dollars ($500.00) as damages, in the premises, and
The court found:
“That, in accordance with the terms of said contract the plaintiff sold and delivered to the defendant at Salt Lake City, Utah, during the months of July and August, 1912, macaroni of the value and contract price of $500, and said defendant has paid no part of said account and has refused to pay the same.
'' That on o.r about the 24th day of August, 1912, the plaintiff, in violation of the terms of said contract, refused to furnish to the defendant macaroni Avhich at that time was ordered by the defendant, and refused to furnish to the defendant any macaroni whatsoever, although the defendant demanded the same, and that by reason of the plaintiff’s wrongful refusal to sell and deliver macaroni to the defendant it was necessary for the defendant to buy his macaroni elsewhere, and that during the remainder of the period of said contract the defendant needed for his business as was contemplated under the terms of said contract 1,500 boxes of macaroni, and the defendant was required to pay more for said macaroni, to his damage in the sum of $90.
“That the plaintiff did not sell merchantable macaroni to private consumers and boarding house keepers, though it did sell broken macaroni, as is usual and customary for the same to be sold, to private consumers, the same not being recognized on the market as merchantable macaroni, and the said plaintiff has sbld macaroni to other Italian grocery stores in Salt Lake City, but has not sold any macaroni .to any Italian stores in Salt Lake City to which the defendant had been selling macaroni, and the $500 damages provided to be paid under said contract were for punitive, and not liquidated damages. ’ ’
But we think the plaintiff is right and the defendant wrong as to the other point. The defendant in his brief' says:
It thus is argued that the language in the contract “and in default or violation thereof undertakes and agress to pay to the second party the sum of $500 as damages” refers only to defaults and violations of the plaintiff not to sell to any private consumer, or to any boarding house keeper, or to any proprietor of an Italian store. The general rule is that, where an agreement imposes several distinct duties or obligations, of different degrees of importance, and the same sum is named as damages for the breach of either indifferently, the sum is to be regarded as a penalty. 13 Cyc.
The judgment is affirmed, with costs.
Concurrence Opinion
I concur. I desire, however, to add a word to what is said by the CHIEF JUSTICE. While, in the absence of fraud or oppression, it is not the province nor the policy of the courts to interfere with competent persons to enter into proper contracts, but to permit them to determine for themselves what the consequences of any breach thereof shall be (Dopp v. Richards, 43 Utah, 332, 135 Pac. 98), yet, in the interest of justice and fairness, the ¿courts have formulated and adopted certain rules by which it is made possible and in most cases practicable, where a specific sum is provided for in case of breach, to determine whether the sum named shall be treated as a penalty or as liquidated damages; Among those rules is one which is usually enforced which is to the effect that where, upon a consideration of all the terms of the contract which is alleged-to have been breached, it is
Now, to say the least, it is quite doubtful whether, under the terms of the contract in question, the $500 named therein was intended as a penalty for every possible breach thereof, and for that reason, if no other, is the judgment right, and hence should be affirmed.