Henderson v. . Cansler

Whether a sum, stipulated to be paid for a breach •of an obligation] to abide by and perform an award, is to be regarded as liquidated damages, or as a penalty, depends not so much upon the mere terms used, as upon the circumstances of •each particular case, and the ' intention of the parties. And this is the sum of all the authorities, which are abundant and familiar. Upon the supposition, that the sum mentioned in the bond in this case, was intended as liquidated damages, it would be at least doubtful, whether the plaintiff would be -entitled to recover in this action ; for, to entitle him to recover, *545 he must show that the defendant refused to abide by and perform the award. Probably a bare trespass upon the premises which had been in dispute, would not be satisfactory evidence of a breach of the bond, or a failure to abide by and perform the award.

Suppose, for instance, it had been awarded that the defendant should make the plaintiff a deed to the land in dispute* and he had done so; and he had subsequently committed either a wanton or an unintentional trespass; would that have been a failure to abide by and perforin the award ? Certainly not. It would have been a bare trespass, unconnected with the award, just as if it had been committed upon any other land of the plaintiff’s. But as the defendant has not appealed, this, question is not decided.

Considering the case, as it seems to have been considered below, as involving the question whether the sum in the submission bond, is to be considered as a penalty, or as liquidated damages, we are of the opinion that it is to be considered as a penalty, and construed so as to indemnify the party against actual loss. It would shock our sense of justice, if for an unintentional injury of $5.00, as the finding of the jury shows this to have been, the defendant should be assessed damages of $1,000.

There is no error.

Pur Curiam. Affirmed.