Berrinkott v. Traphagen

LyoN, J. It is claimed on behalf of the plaintiff, that no exceptions to the findings of fact were filed within the time prescribed by statute, and hence that such findings cannot be — 224 — reviewed on tbis appeal. We do not find it necessary to determine whether this position is well taken, for the testimony has been examined, and we are satisfied that it sustains all of the material findings of fact. We think also-that the notice to the obligor that the plaintiff exercised the option reserved to her in the bond, was given in due time. A payment of $32.48 became due September 18, 1874, and the thirty days mentioned in the bond before such option could be declared, expired on the 16th of October. On the 25th of November, 1874, the plaintiff caused to be served on the obligor, at his residence in the state of Nebraska, a notice in writing of her election that the whole sum of $464, and the arrears of interest thereon, should become due and payable immediately; payment of which was demanded. Although there were previous defaults, we cannot doubt that it was competent for the plaintiff to exercise her option within a reasonable time after any default; and when it is considered that the obligor had removed to a distant state, a period of less than six weeks in which to find and procure service of the proper notice upon him, does not seem to be an unreasonable time. It is clear that the plaintiff is entitled to a judgment of foreclosure; and the only remaining question, and the most important one in the case is, What sum is due upon the bond which the mortgage in suit was given to secure? The learned circuit judge held that the parties to the bond had therein liquidated the sum which the obligor should pay upon default (if the plaintiff chose to declare her option) at $464, and arrears of interest thereon, and that the case is a proper one for the enforcement of a covenant to pay stipulated damages for a breach of the condition of the bond; and the judgment is upon that basis. But it is contended on behalf of the appellants, that this is error; that the gross sum to which the plaintiff is entitled is not $464, but only the value of a life annuity of $32.48 at the time the plaintiff declared her option, at which time she was fifty-two or fifty-three years of age. — 225 — ■Such, value, computed by the Northampton tables, was then a little less than $300. The form of the covenant is, that in case of default in mating any annual payment the whole debt or obligation should become due and payable at once, at the option of the plaintiff; and if it should become so payable, the covenant fixed the amount thereof at $164, and arrears of interest thereon. So far as form is concerned, the penalty of the bond is $900, and the stipulated damages, in case of a breach of its conditions, are $464. Fletcher v. Dycke, 2 Term, 32; Astley v. Weldon, 2 Bos. & Pul., 346. But it by no means follows, because the covenant is in form for the payment of a stipulated sum, that the plaintiff must necessarily recover that sum. In many cases the sum named in such covenants has been held to be only a penalty. Should it be so held in this case, then, clearly, the measure of the plaintiff’s recovery would be the gross value of the annuity when she declared her option, and arrears of interest. In Yenner v. Hammond, 36 Wis., 277, the chief justice says: “ "Whatever words are used in a covenant providing a sum for damages upon breach, the mere words are not conclusive, and courts ought, in the language of O. J". Abbott, to look into the whole of the agreement in order to ascertain whether the sum was intended to be a penalty or liquidated damages. Davis v. Penton, 6 Barn. & Cress., 216; Sedgwick on Damages, 421, and cases cited.” In 3 Parsons on Con., 156, we find this language: “ The law will permit parties to determine by an agreement which enters into the contract, what shall be the damages which he who violates the contract shall pay to the other; but it does not always sanction or enforce the bargain they may make on this subject. Damages thus agreed upon beforehand, when sanctioned by the law, are called liquidated damages. Where the parties make this agreement, but not in such wise that the law adopts it, then the damages thus agreed upon are a penalty, or in the nature of a penalty.” — 226 — Tbe question remains, therefore, notwithstanding the form of the covenant, whether the $464 named therein is to be treated as liquidated damages, or considered as a penalty, or in the nature of a penalty. The rules by which this question is to be determined, are thus stated by Mr. Sedgwick: 1. If the sum be evidently .fixed to evade the usury laws or any other statutory provisions, or to cloak oppression, the courts will relieve by treating it as a penalty. Consequently, whenever the sum stipulated is to be paid on nonpayment of a less sum made payable by the same instrument, it will be held a penalty. 2. Where independently of the stipulation the damages would be wholly uncertain, and incapable or very difficult of being ascertained except by mere conjecture, there the damages will usually be considered liquidated, if they are so denominated in the instrument. These rules received the approval of this court in Pierce v. Jung, 10 Wis., 30. See also Fitzpatrick v. Cottingham, 14 id., 219; Ryan v. Martin, 16 id., 57; Laubenheimer v. Mann, 19 id., 519. The same rules are stated in another form in Bagley v. Peddie, 5 Sandf., 192, by SANiuroRD, J., as follows: “ 1. If the instrument provide that a larger sum shall be paid on the failure of the party to pay a less sum in the manner prescribed, the larger sum is a penalty, whatever may be the language used in describing it. 2. When the covenant is for the performance of a single act, or several acts, or the abstaining from doing some particular act or acts, which are not measurable by any exact pecuniary standard, and it is agreed that the party covenanting shall pay a stipulated sum as damages for a violation of any such covenants, the sum is to be deemed liquidated damages, and not a penalty. The cases of Reilly v. Jones, 1 Bing., 302; Smith v. Smith, 4 Wend., 468; Knapp v. Maltby, 13 id., 587; Dakin v. Williams, 17 id., 447; S. C. in error, 22 id., 201, were of this class.” . To the same general doctrine we cite the following late cases: Powell v. Burroughs, 54 Pa. St., 329; Wolf Creek Co. — 227 — v. Schultz, 71 id., 180; Trustees, etc., v. Walrath, 27 Mich., 232; Smith v. Hamilton, 3 Daly, 462; Morris v. McCoy, 7 Nev., 399. It is very certain that the sum fixed in the covenant before ns was not intended to evade the nsnry laws or any other statutory provision; and it is not perceived how it could have been 'intended to cloak oppression or injustice. The covenant was voluntarily made by the obligor, and, so far as appears, he received therefor full value for the sum which he agreed to pay, at the option of the obligee, in case of default. The most that can be said against the justice of it is, that the damages would be the same if default were made and the option declared at a much l'ater period in the life of the obligee. But that is a contingency which it may be fairly presumed the obligor took into consideration when he made his covenant; and it was always in his power to prevent the happening of such contingency by paying the annuity which he covenanted to pay. If the views above expressed are correct, it follows' that the sum named in the bond is to be regarded as stipulated damages, unless the gross value of the life annuity can be ascertained by some exact pecuniary standard. Were this a covenant to pay a specified annuity for a certain number of years, there would be no difficulty whatever in making an exact computation of the gross value thereof at any given time. In such a case, the first of the above rules would govern, and. a greater sum named in the bond’ as stipulated damages would be treated as a penalty, or as being in the natm-e of a penalty. But in the case before us an essential element or factor is wanting. It is impossible to know how long the annuity would continue, for that depends upon the duration of the life of the obligee. Hence, it seems to me that the gross value of the annuity when the plaintiff declared her option, is not measurable by any exact pecuniary standard; and that the second rule above stated must control the case. — 228 — It was argued that sucb value cau be ascertained by reference to accredited tables giving the present value of life annuities at different periods in the lives of the annuitants. Those tables are based upon extensive observations of the duration of human life, and, as statements of average results, are doubtless approximately correct. But when applied to an individual case, the element .of exactness is wanting. A writer on this subject says: “With respect to the price or real value of life annuities, they are seldom regulated by any strict rules of arithmetic; for, notwithstanding the great ingenuity of De Moivre, Dr. Price and others in' calculating tables for regulating the same, yet there are few instances in which any rules laid down in these tables have been adopted. The various circumstances connected with individual annuities, such as the age, constitution and necessities of the borrower, the value and supply of money in the market, the nature of the securities, etc., must necessarily render the use’of such tables somewhat partial, and in many instances totally impracticable. The rules laid down in these tables are of too intricate and •complex a nature to be generally adhered to, and may in all cases be better adapted to the periods in which they were calculated, than to the present time.” Blayney on Life Annuities, 28. This extract suggests considerations why a computation of the present value of a life annuity from those tables is uncertain and unsatisfactory, and may be unjust. It is understood that there are different tables of the kind in use. Those which are probably most frequently resorted "to by the courts are denominated the Northampton tables. I am not •familiar with the history of any of these, and do not know when the Northampton tables were framed, but suppose them to have been, when prepared, as nearly accurate as ju’acticable. We have no statute or rule of court on the subject in this state; and should it become necessary, in any of our courts, to ascertain the present value of a life annuity, the court would be compelled, ex necessitate rei, to resort arbitrarily to some — 229 — annuity tables for tbat purpose. ' In New'Tort tbe Northampton tables have been adopted by rule of. court. Eule 85, S. C., "Wait’s Annotated Code, 871, 881. I should prefer, however, to resort to those prepared more recently, and based upon the average duration of life in this country. I am led to believe that such tables exist, and are used by some life insurance companies in this country, and that they show a higher average duration of life than is shown by the Northampton tables. However, I may not be correctly informed in this behalf. These observations are made for the purpose of showing that if the present value of a given life annuity be computed Horn such tables, the result is, to a considerable extent, conjectural and uncertain. Indeed, it seems to me quite certain that the result will not give the actual present value, but will be unjust either to the annuitant or to the person who is liable to pay the annuity. This being so, it seems very proper that when the annuity is created, the parties to it should stipulate some reasonable sum which should be paid in gross in lieu of the annuity, upon the happening of a contingency making a gross sum payable. I cannot doubt that this was done in the present case; and it seems to me that the court should enforce the contract of the parties as they made it. I think that the judgment of the circuit court should be affirmed. Cole, J. I concur in the above opinion of Mr. Justice LyoN.