New-York tribune., 1841-10-26

Ny John L. Mason. for Inc ComPistna
Mr.. x. B. Ktn6aH, for Guardian OF lniahu'.
Mr.. E. H. Ktmb0U for the other DelenuaD'
The ASSISTANT VICE CHAoELtoR--Afa Daii
the inestate on the Doth oil March, 1917
into the following agreement WIN 'ii'
ant: - 49,.
Articles Of agreement made ana enter" 't''
,b; ,re,,;e,b dav of March, in the year one tiiou
.and ooh, hundred and thirty nine between Ham
;l,o, Murray Of the the city Of New OK, oil The
6,., mar, and Asa Day of the same place, OF Tie
second part, as follows: =
C5e said party of the first part doth hereby
agree to sell to the said party of the second part
ard the said party OF the second part doth hereby
agree to purchase from the said party OF the hrs
part. the house and lot known number l97 Gone
hundred and ninety veveu} in Chamber street. liz
the city of New YORK for the consideration OF siN
thousand three hundred and eighty dollars; and
the said party OF the first part doh hereby agree
on or before the first day Of May next, upon the
receipt from the said party OF the second part ci
the said sum of money, to execute and -icilver TO
the said party Of the second part decd of convey
ance in fee simple Of the said house and lot cove
naming against any acts on his part. By which the
title thereto may or shall be impeacAed.
And tho said party of the second part doth, for
himself his heirs executors and administrators Co
vcnant and agree to and with the said party of the
first part, 10 pay unto him the OF six Thousand
three hundred and eighty dollars aforesaid. on OF
before the frst day OF May next; and il the SAM
shull not then be paid that he, the said party OF
the second part, will ray to the said party OF the
first part five hundred dollars, as the hqudatcc
damages Of the said party Of the first part 10y rca-
son of his agreement such case hay1rg been per-
forced! P"
Asa Day died on the 2O;h of May 1882 in'es-
tate The defendant Susnn, i his widow and
administrators. and the other dcfesdants are his
children and the husband OF one of them
The question whether any relief can be given in
this court is first to be examined; it may pre-
veRt the necessity ofexamning any other. lhere
may be doubt whether the answer Of the adults
sufficiently raises the point that the remedy IS At
law (See Parher cs. HiHtamS, March 10Th,
1871, supplement to the Saratoga Sentinel } How
ever the infant. are entitled to take II At the hear
ing, under their general answer; aud il he point
is properly RATED by TEN aud prevails. ! do not
see how | can avoid sustaining II. As 10 o'hetS,
there does not appear To be any ground for making
discrimination
The lending question is, whether the sum OF five
hundred dollars in the nature Of penalty or II
quidated damages. II the lat or, am Of opinion
that there is no jurisdiction here Ii tic former
the case is sill in my judgment. uncertain.
slral refer to IL few of the multitude of cases
upon this suhecs-a subject always spoken OF as OF
great uncertainty, ava upon "uCI u - "VNt ~ "''
impossbility to state precise rules.
In Tinciey VS. Gutter: & Conn, Rep, 29l y
Elisha Cutler agreed with Tinglcy to buy OF HIM
the house and store then occupied by him tor the
sum of 81 ,975. payment to be made III TWO noics
of Tingley given to one Jonathan Gutter; the re-
mainder, S3O9 in sixty days: the rest by the first
of April with good security. On the back was
written, The consideration of the within is such
that if Elisha Cutler does not perform according
to the within instrument he shall pay the sum OF
$3.50 ELISHA Cutler.
The cour, held that the $3.50 was quiialcd
damages, and sustained verdict TO that effect.
In Alien Bra-ier G. Bailey, S. c. Rep
395.)-O'NeGl j. said d" What shall beregardcd
as penalty, and what stated damages, will a.
ways depend npon the intention of tho contracting
parties, to be gathered from the terms OF the con
tract construed in relation to its subject natter
That the following general rulcS:-lst, Il
the principal sum is be paid on tho hing con-
tracted for is to be enjoyed and sum Is to be
paid in addition, then this additional sum is stated
damages. 2nd, If the sum to be paid is less than
the principal sum, or than the value of the thing
contracted about, it would ecscrally be regard d
us stated damages. 3d. Ii day is fixed for the
performance of an act and part payment beyord,
it could operate but little damage 10 the
party, and still is stipulated to be paid il
performance is not made ii must be considered as
to be forfeited in that event md therefore
stated damages In that case the agreement WAS
to deliver negro on fixed day, and in default of
delivery to pay 500 which sum was held recover
able.
In Dennis vs.. C,tm,nin 6 John Ca, 297 y
the agreement for exchange oi property
the one parcel being valued at $3.50. The pro-
vision upon failure of either party was eray $4,000
This held penalty merely
In Spencer THden, 6 Cowcn li5) the
agreement was in the disiunctvc, TO pay $500.
twelve good COWS and calves III u certain time
The verdict of the value of the cows and calves
S20S, was sustained.
In Aires vs.. PeSSs, (l2 Wendell 395) the rule
is expressed 10 be that the whole depends upon
the intention of the parties The defendant had
there taken property, and the acton WAS for the
purchase money. The agreement was hy per-
chaser with seller that he would pay The purchase
money in the manner provided and also nclose the
lots with substantial fence Ii he should fail to
perform the contracr, or any part OF 1t, he was 10
pay S25 liquid2ied damages, AID give up possess
ion. The same is the rule stated in Perkins y.
Lyman. (li Mass 76) with the addition inst tn
court may call in the aid Of extraneou- circum-
stances the subject OF the contract the situation OF
The parties, the wages well as other iactN and
circumstances OF their conduct.
In Pierce vs.. Fuller 6 Mass. 2:S.) the de-
feodant agreed that he would stage upon
certain road in opposition the plaintiff stuge,
on penalty of 5000. This sum was considered
as hqudatcd damages
In lVithams vs.. Dakin GO, Wendell 2Ol.l7,
Wendell Az, J. the Chancellor saws" that there
Ia another class OF cases where from the language
of the agreement il difficult to asccftaio what
the partie. really intended IN which the ccur, ba,,,
taken tue RESPONSIVENESS OF the provision a. uuui