Trower v. Elder

Mr. Justice Scholfield delivered the opinion of the Court: It is not contested, if the clause in the agreement providing for the forfeiture of threefold the amount paid, as damages, relates as well to the sale of the bank safe and fixture^, as to the agreement not to engage in the banking business in the town of Sullivan, the sum named must be held to be a penalty to secure the performance of the entire contract, and not liquidated damages, to be recovered for the breach of a single stipulation. This is in accordance with the well established rule, that where there are several covenants or stipulations in an agreement, the damages for the non-performance of some of which are readily ascertainable by a jury, and the damages for the non-performance of the others are not measurable by any exact pecuniary standard, and a sum is named as damages for a breach of any of the covenants or stipulations, such sum is held to be merely a penalty. Astley v. Weldon, 2 Bosanquet and Puller, 346, 353; Davies v. Panton, 6. Barnwell and Cresswell, 216, 264; Crisdee v. Bolton, 6 Carrington and Payne, 240, 243; Wall’s Exrs. v. Shepherd, 2 Ala. 425; Rivers v. Ransom, 18 Barb. 51; Berry v. Wisdom, 3 Ohio St. 241; Lampman v. Cochran, 16 N. Y. 275; Foley v. McKeegan, 4 Iowa, 1; Bayse v. Anderson, 28 Mo. 39; Higginson v. Weld, 14 Gray, 165; Nash v. Hermosilla, 9 Cal. 584; Hamilton v. Overton, 6 Blackford, 206; Dailey v. Litchfield, 10 Mich. 29; Carpenter v. Lockhart, 1 Ind. 434. The language of the clause is: “And the said William Elder, party of the first part, on his non-compliance with the foregoing recited engagements, forfeits threefold the amount paid to him by the said T. B. Trower & Son, as damages to them for such non-compliance.” It is true, as argued by counsel, the recitals, or preamble, prefixed to an agreement, do not, of themselves, alone, have any obligatory force; but they may be referred to in the operative part of the instrument in such way as to show it was designed they should form a part of it; and this we conceive to be the casé in the present instance. What are “the foregoing recited engagements,” upon nonperformance of which the forfeiture is to be incurred ? The recitals immediately preceding are, “that William Elder, party of the first part, hath this day sold all his business, interest, influence and patronage in the banking business, and also his bank safe, together with all the fixtures pertaining to the business of banking, in the town of Sullivan, Moultrie county, Illinois, and he also agrees, and hereby binds himself, not to engage in the banking business in said town of Sullivan, Illinois. For which franchises, benefits and privileges, the said T. B. Trower & Son, parties of the second part, pay unto the said William Elder the sum of $1250.” The words, “and also his bank safe, together with the fixtures,” etc., show, as plainly as words can, that these articles were sold in connection with the banking business, interest, patronage, etc.; and the words, “he also agrees and binds himself not to engage in banking,” etc., as clearly show that this undertaking was a part of the same contract. But. it is argued, the bank safe and fixtures were too trifling and insignificant to have any value affixed to them, and that they do not constitute any part of the consideration for which the $1250 were paid. The payment of the $1250, manifestly, could not have been solely in consideration of the undertaking to not engage in banking, since the language of the agreement is, that it was for certain “franchises, benefits and privileges.” What was intended by the use of these terms, is apparent from the connection in which they occur. As will be remembered, they immediately succeed the recital of the things sold, and what is to be done by Elder. They are prefixed by the words, ‘•for which,” thus showing that they were used as synonymous with that which was previously recited. Although this may be an inapt description of tangible property, yet, as the safe and fixtures were a part of that which was sold by the agreement, it must have been intended they were included within it. But, again, if it be true the safe and fixtures were of no value, why were they mentioned in the agreement? The language of the agreement itself, forbids this supposition. It says they were sold. If there was a sale, there must, necessarily, have been a price agreed upon, in some form, as to their value; and whether it was much or little, whatever it was, it formed so much of the consideration for which the $1250 were paid. We can neither indulge in presumptions, nor judicially know that the safe and fixtures were not an important part of that consideration. Entertaining these views, it follows the judgment must be affirmed. Judgment affirmed.