K. P. Min. Co. v. Jacobson

McCARTY, J., after stating the facts, delivered the opinion of the court. Appellant contends that the finding made by the court wherein it is held that he did not surrender his option on October 5, 1903, and that the plaintiff did not take possession of the property on the 15th day of the same month, is contrary to, and not supported by, the evidence. While there is some conflict in the evidence respecting the language used by appellant when he claims to have notified Kiesling, who was the manager of respondent company and one of the directors, that he wanted to forfeit the option he had under the contract to' purchase and surrender the property, yet, when considered in connection with the admitted fact that the company, on the [120] 15tb day of October, went into possession of tbe property for tbe purpose of making a survey for patent, and, for angbt that appears in tbe record, bas ever since continued in possession thereof, and performed work and incurred expenses wbicb tbe contract expressly provided should be performed and borne by appellant, shows that, whatever tbe exact language used by appellant may have been when be signified bis intention to surrender bis option and forfeit bis rights under tbe contract, tbe company, by its acts in taking and continuing in possession of tbe property, accepted and treated tbe statements and conduct of appellant as a surrender by him of the property and a forfeiture of bis rights under tbe contract. “An actual and continued change of possession by the mutual consent of the parties will operate as a surrender by operation of' law, though there was no express agreement of the parties that it should so operate.” (18 Am. & Eng. Ene. L., 362.) The finding of tbe court on this point is not only unsupported by, but is contrary to, tbe evidence. There is another reason why respondent cannot recover in this action. Tbe contract itself provides for liquidated damages ; that is, tbe parties have stipulated therein what tbe damages shall be in case of a breach by appellant of any of its covenants. And tbe general rule is that when parties to a contract of this kind, where tbe damages resulting from a breach thereof are uncertain in amount, have stipulated what such damages shall be, no other or greater damages than those agreed upon can be recovered. In 8 Am. & Eng. Enc. L. (2 Ed.), 636, tbe doctrine is stated as follows: “If the parties to a contract themselves limit the damages by stipulation in the contract itself, the measure of damages will be thereby controlled and determined. Thus, in an action on a written contract for a stipulated amount, the contract itself furnishes the measure of damages.” In 13 Cyc. 90, it is said: “The contract is to govern, and the true question is: What was the contract? Whether it was folly or wisdom for the contracting parties thus to bind themselves is of no consequence, if the intention is clear. [121] If there be no fraud, circumvention, or illegality in the case the court is bound to enforce the agreement.” In Page on Contracts, section 1171, the author, in stating this general doctrine, says: “If the actual damages exceed those contracted for, the injured party is bound by the stipulation of the contract, and cannot recover the actual amount of damages.” (1 Sutherland on Damages [3 Ed.], sec. 279; Hennessy v. Metzger, 152 Ill. 505, 38 N. E. 1058, 43 Am. St. Rep. 267; Jackson v. Hunt [Vt.], 56 Atl. 1010.) This doctrine is so well settled that we deem a further discussion and citation of authorities unnecessary. The contract under consideration in part provides that in case appellant shall fail to pay any one of the installments of the purchase price therein mentioned, “or shall fail to comply with the covenants and conditions therein imposed upon him or any one of the same then this contract shall terminate . . . and all installments or other sums which may have been paid by the second party [appellant] shall be forfeited by the said second party and become liquidated damages,” etc. It will thus be observed that the contract by its terms clearly provides what .the damages shall be in case of a br each of any of its provisions by appellant: First, he shall forfeit whatever installments of the purchase price he may have paid, and, second, “other sums which may have been paid by him.” Now, the term “other sums” undoubtedly includes the money paid by appellant for work done on the mining claims referred to, and which is one of the forfeitures therein mentioned. If respondent could recover for the price of unperformed labor sued for in this case, he would be entitled to recover the amount of.the first installment, $5,000, of the purchase price of the property, and it appears to be conceded that an action would not lie for the breach of this covenant. The judgment is reversed, and as it is plain that respondent, by the terms of the contract itself, is precluded from recovering damages in any sum, the trial court is directed to dismiss the case; the costs of this appeal to be taxed against respondent. BARTCH, C. J., and STRATJP, J., concur.