Without deciding whether the condition of the agreement was, in fact, stipulated damages or a penalty, there is one view of this case decisive upon the question. Mr. Flint was sworn on the arbitration, and testified that his damages were more than $4,000, for want of punctuality on the part of Oliver to settle; and there was no contradictory evidence to rebut this proof. So, whether we consider this as strictly a case of stipulated damages, or only a forfeiture, the result is the same, as the actual damage is proven to have exceeded this sum.

The judgment, must therefore, be affirmed.