Lexington union. (Lexington, Miss.) 1838-18??, 1839-04-06

on hut Il cannot when the covenant is
certain and fixed as to the amount Inns
j. the distinction taken in Kemble VS.,
:Farren, 6 Bingham, al, The agreement
was in substance this: the defendant enga-
oed to act as commedian at Covent Garden
theatre, for four seasons, and in ali things
10 conform to the regulations Of the theatre.
The plaintiff agreed to pay him 81. 6s. o.
every night the theatre should be open.
1t contained clause that if either OF the
parties should refuse or neglect to iulh'
said agreement, or any part thereof, or any
stipulation therein, such party should pay
10 the other the sum Of l,O0Ol., to which
sum it was thereby agreed the damages
should amount, and which sum was there
by declared to be liquidated and ascertain.
ed damages, and not penalty or penal
sum. or in the nature thereof. The court
said that if this clause had been limited to
breaches which were ofan uncertain nature
and amount, it would have had The effect
OF ascertaining the damages. TWAS, how
ever, considered as penalty. because 1t
extended to covenants which were certain
in amount. If the plaintiff had failed to
make single payment of 81. Is. 3d. the
defendant would have been entitled to the
stipulated damages. The courtvcry justly
said "that very large sum should imme.
diately become payable, in consequence Of
the non.payment Of very small sum, and
that the former should not be considered as
a penalty appears to be a Contradiction in
terms. The same may be said in the pre-
tent case. The two cases are not distin.
gu;shable in principle. The plaintiff in
error was to pay $4,000 for the non-pay.
n,ent OF which the defendant in error claims
five thousand. The covenant on which
the suit is brought is certain in amount as
to plaintiff in error, and although thecove-
rants of the defendant in error were UNI
certain, it does not vary the rule. This
was also the nature Of the agreement in the
case cited, and then the suit was actually
brought for the non.performaace of an on-
certain covenant, and still the rule was
properly applied, because mutual covenants
must be mutually binding on both parties,
and where they are not obligatory ON one,
they are not on the other.
The same rule is also recognized IN The
case Of Dennis vs.. Cummias, 3 Johnson's
Cases 297, and also, in the case of Gray
VS.. Crosby, IS J. Rep. 2l9, in which the
further distinction was taken, that liquida-
sted damages must be in lieu of a perform
ance Of any thing that is covenanted 10 be
done, and Operate as discharge Of the
covenant, in all cases where they can be
recovered Admitting then that the de.
PENDANT in error could recover the stipular
ted damages in this case, would such re-
covery discharge the plaintiff in error from
ahis covenant? 1t is not by any means
certain that it would, but this question
need not now be discussed.
The case 'of REILLY VS.. Jones, ! Bur-
sgham 302, cited at bar, is in conflict with
these decisions. 1t was decided, however,
sometime anterior 10 the case Of Kemble
VS.. Farren, and as ii was cited on the ar
gument OF the latter case, il may be con-
sidered as virtually, although it was MOI
expressly overruled. The judges briefly
delivered their opinions sertatim, but did
not, as did Tindal Chief Justice in KEN
BILE VS.. Farren, give any reasons for their
decision, further than that they conceived
it to have been the intention Of the parties
to fix the damages, and that no authority.
had been produced against it. We, there
fore, think the case of Kemble vs.. Farren
contains the true rule, and as it is well
fortified by the cases of Dennis vs.. Cum
Minis, and Gray VS.. Crosby, we must
adopt it, and we think that itapplies in its
full extent to the case before us. The OBJ
ject Of the. parties mast have been TO Sc
cure performance of the contract in all
its parts. Suppose Bright had paid for the
land, but had failed to pay for the corn or
the fodder, such failure would have been
equally a breach Of the covenant; and
could it be seriously commended that five
thousand could be recovered for the nom
payment Of four hundred and six dollars
INVENTIVE cents, which was the price Of
The corn. Such position cannot be main
tanned, and yet it would be the result if o
breach of the covenant gives the right e
the damages claimed. This conclusion
shows that the above rule is founded in the
strictcst principles Of justice, and although
injustice may sometimes be done where
the covenant is uncertain and llquidatet
damages are recoverable, yet it arise
from the impessibility Of fixing truly tn
amount of damages, and the parties ar
allowed to fix them themselves.
1t is said that this question is not reach
ed by the demurrer. That IS true, but II
court after everything the demurrer, CAV
judgment by default for the full amount
the damages claimed, and this was erro
.xphsrh =. ca .~1x, tod hxy the record.