Moore v. Colt

Opinion, Mr. Chief Justice Paxson : The defendant below was clearly liable for his breach of the agreement of May 1, 1880. The only question is as to the amount of damages. The jury rendered a verdict against him for $602.42. He now claims that the damages were liquidated by the article of agreement at the sum of $300. The language of said agreement is as follows: “ And each party is hereby held and fjilly bound in the sum of three hundred dollars for the faithful fulfilment of the above contract.” If we interpret this contract by this language, we have the case of a penalty. It is in almost the exact terms of the ordinary penalty of a [295] bond. There is no agreement “ to forfeit,” which in Streeper v. Williams, 48 Pa. 450, was held to be the equivalent of the words “ to pay,” and to be liquidated damages. In Cushing v. Drew, 97 Mass. 445, Cushing sold to Drew certain horses and ■wagons and the good-will of an express business in the town of W. for $650, and agreed in writing not to do any express business, or cause any to be done in that town, so long as D. should do such business there, and in case he violated the agreement lie was to pay D. $900. This was held to be liquidated damages. Cushing stipulated to do a single thing, viz.: to abstain from interfering with the business of D., and if he failed in this he was to pay Drew the sum of $900. It is difficult to see how any doubt could have arisen in that case. The one in hand is not so clear. The parties have merely bound themselves in the sum of $300 for the faithful fulfilment of their contract. That contract was that Moore (defendant below) agreed to sell to Colt (plaintiff below) all his interest and good-will in the “ bus business ” between the borough of Waterford and Waterford station, together with the “bus” and sleigh then in use by him, for the sum of $150, with the stipulation that the said Moore should not engage in, or use his influence in opposition to Colt, in the passenger, mail, or express business in any manner or form; each to be held and fully bound as above stated in the sum of $300. The nature of this stipulation, whether a penalty or liquidated damages, does not depend upon which party violates the agreement. Had the breach been by Colt, and he had refused to pay the $150, what would have been the measure of damages in a suit against Mm by Moore? Would it have been the sum he agreed to pay— $150 with interest, or would it have been the $300 as liquidated damages ? The latter proposition cannot well be maintained. There is no class of cases which come before us more difficult to determine upon any settled rule than this. It was said by Mr. Justice Agnew, in Streeper v. Williams, supra, at page 454: “Upon no question have courts doubted and differed more. It is unnecessary to examine the numerous authorities in detail, for they are neither uniform nor consistent. No definite rule to determine the question is furnished by them, each being determined more in direct reference to its own facts than to any general rule. In the earlier cases, the courts gave more [296] weight to the language of the clause designating the sum as a penalty or as liquidated damages. The modern authorities attach greater importance to the meaning and intention of the parties. Yet the intention is not all controlling, for in some cases the subject-matter and surroundings of the contract will control the intention where equity absolutely demands it. A sum expressly stipulated as liquidated damages will be relieved from, if it is obviously to secure payment of another sum capable of being compensated by interest. On the other hand, a sum denominated a penalty or forfeiture, will be considered liquidated damages where it is fixed upon by the parties as the measure of the damages, because the nature of the case, the uncertainty of the proof, or the difficulty of reaching the damages by proof, have induced them to make the damages a subject of previous adjustment.....Upon the whole, the only general observation we can make is, that in such case we must look to the language of the contract, the intention of the parties as gathered from all its provisions, the subject of the contract and its surroundings, the ease or difficulty of measuring the breach in damages, and the sum stipulated, and from the whole gather the view which good conscience and equity ought to take of the case.” This language is so appropriate that I trust it will justify the length of the quotation. The defendant contends that the difficulty of ascertaining the damages is a reason why the case should be treated as one of liquidated damages. The jury, however, appear to have had no difficulty upon this head. The plaintiff proved that the defendant, in violation of his contract, had carried a certain number of passengers, which at the regular rates of fare amounted to the sum found by the jury. Tins was just so much money practically taken out of the plaintiff’s pocket, and no good reason is apparent why he should not be compensated. The defendant has no equity which would constrain us to hold that language which technically provides a penalty shall be treated as liquidated damages. It is true the whole amount he received for the business, good-will, and property was only $150. But this claim was for an interference with his business for over a year, and the direct loss to the plaintiff as found by the jury was largely in excess of the penalty. It can readily be seen that for such interference, continued for years, the sum of $300 would not be an adequate compensation. [297] Ill this view of the case we think the evidence referred to was properly admitted. It was not offered to prove speculative profits, but to show actual loss to the plaintiff. N or do we find any error in that portion of the charge of the learned judge embraced in tbe remaining assignment. judgment affirmed.