Sleeper v. Pickering

The objection to the declaration does not appear to be sustained. It alleges that the defendant bound and obliged himself, by his writing obligatory, in the sum of $500, which was declared by said bond to be stipulated damages in case the defendant should not abide by and fully perform the award of certain arbitrators. It then became necessary to set forth the condition, sufficiently at least to show a breach. Alleging the nonpayment of the sum of $500 in the usual form, as if the bond was single, or as if the sum of $500 was a penalty; leaving it to the defendant to aver and set out the condition, would not have been sufficient. Whether it was necessary to set out the condition at large, it is not material to inquire. If not, what is unnecessary is at most but surplusage.

In setting forth the condition, it appears that it was further agreed by the defendant that he should not have power to revoke his submission, “but, in case he did not agree in all things to said submission, said sum of $500 should become due and owing, and recoverable ” by the plaintiff This certainly does not change the character of the first part of the bond, by which, according to the averment in the declaration, the defendant agreed that the sum of $500 should be stipulated damages in ease the defendant should not abide by and perform the *463award. It only adds another agreement, for the breach of which the stipulated damages were to be paid, and it is not material that the stipulation is found in the obligatory part of the bond, and not in the condition. The obligatory part of the bond specifies one contingency upon which the principal sum is to be recovered as stipulated damages. On the construction of the defendant, the condition specifies another. The breach is well alleged upon the first, in setting forth the award, the demand of the money, and the refusal.

Judgment for the plaintiff.