Swift, Hamberger & Co. v. Powell

Lochrane, Chief Justice. This case came before the Court upon exception to the judgment of the Court granting a new trial. We affirm the judgment of the Court below, as we are of opinion that his conception of the law of the case, as submitted in his charge to the jury, was erroneous as to the principles of law governing the case, and it was his duty to have granted the new trial. The written instrument entered into between the parties reciting a consideration for the agreements entered into, lifted the case, in the opinion of the Court, out of the operation of the Code, section 2596, and gave to it the effect of a legal and binding contract, which Courts would recognize and enforce. And the stipulation that the parties were to put up $1,000 00 each to cover any contemplated losses arising out of non-compliance, in our opinion, was an agreement fixing the losses by the sum stipulated to be paid. And in a suit brought for damages arising out of the non-performance of the contract, no more than this agreed sum could be legally recovered. Judgment affirmed.