Hempler v. Schneider

delivered the opinion of the court.

This was an action commenced by Hempler, the plaintiff, against Schneider, on a note, in the German language, of which the following is a translation: “I, the undersigned, bind myself to pay to Heinrich Hempler, for Wilhelm Nauman, the sura of two hundred dollars, for goods received, in,case that Wilhelm Nauman does not return to St. Louis within fifty days from to-day. In case said goods should be damaged by fire or water, I do not hold myself bound to pay the above security ; for all such damages H. Hempler will alone bear the damages. '“CASPAR SCHNEIDER.

“ St. Louis co., 5th April, 1852.”

On this note, there was the following endorsement:

“ Received on this, fifty dollars.

“ HEINRICH HEMPLER.”

It appears that Hempler delivered goods to Nauman for the purpose of peddling, and that Schneider, on his behalf, execu*260ted to Hempler tbe note set forth above. Nauman, from sickness and other unavoidable accidents, did not return to St. Louis within fifty days from the date of the note, but in a skor time after did return. After his arrival, he executed to Hempler a negotiable note for the sum of two hundred dollars, the amount of the bill for the goods received of him. There was some evidence of a conversation between Hempler and Schneider, in which Hempler was heard to say, “ you are free now this was after Nauman had given his note to Hempler. Nauman had never paid any thing to Hempler for the goods. On this evidence, after instructions not deemed material to notice, there was a verdict for the plaintiff.

1. This court is not aware of any law, which would justify it in releasing men from their lawful contracts, unless in cases of fraud, imposition, accident, or mistake in their creation. The plaintiff may have sustained no damages in consequence of Nauman not having returned in fifty days, hut there was a sufficient consideration for his undertaking, and he must abide the consequences of his own bargain deliberately entered into. Where a certain sum is to be paid, and becomes due, as liquidated damages on the violation of an agreement, it seems that, at law and in equity, both parties must abide by the stipulation, and that a jury is bound to give damages to the full amount of the sum prescribed. Lowe v. Peers, 4 Burr. 2229.

It is not perceived on what ground the defendant can avail himself of the fact of the plaintiff’s having received a negotiable note from Nauman.

The declaration of the plaintiff to the defendant that he was free, even if made respecting this transaction, cannot operate to discharge him.

2. From time out of mind the practice has prevailed in this state, of giving jurisdiction to inferior courts, by a voluntary renunciation of a part of a demand. And, judging from the spirit of our legislation, this, so far from being contrary to the policy of our law, is in strict harmony with it. We are aware of the opinions that have been held elsewhere in relation *261to this matter, but although it is a subject of daily occurrence, a case is not remembered, in which the question ever before found its way to this court. The judgment is affirmed. The other Judges concur.