Lowe that I will not marry with any other person besides herself; if I do, I agree to pay the said Catharine Lowe 1000l. within three months next after I shall marry any body else:" it was held that the sum specified formed the sole measure of damages, as fixed and liquidated between the parties by their express agreement. In Birch v. Stevenson (g) "5l. per acre" were reserved in a lease, "for every acre of meadow land which the lessee should plough up," &c. It was contended that this reservation was in the nature of a penalty, against which the tenant might be relieved. Upon which Sir J. Mansfield, C. J., observed, “You must enforce that argument in a court of equity; it cannot be listened to in a court of law: but a very great authority in a court of equity has said, that a reservation of 1007. per acre for ploughing pasture land is not a penalty (h)." In a subsequent case (i), the Court of King's Bench held that a reservation of “50l. per acre for every acre converted into tillage," &c., is in the nature of stipulated damages. And where a lessee covenanted that he would not, in the last three years of the term, sow more than seventy acres of clover in one year, or, if he did so, would pay an additional rent of 107. for every acre above seventy acres, for the residue of the term, in the same manner and at the same times as the annual rent before reserved;" it was held in equity that the additional rent was in the nature of liquidated damages, and not of a penalty; and therefore, on a bill filed by the landlord for a discovery of the breaches, a plea that the discovery might subject the tenant to penalties was overruled (k). And in Fletcher v. Dyche (1), where two persons agreed to perform certain work in a limited time, "or to pay a stipulated weekly sum for such time afterwards as it should remain unfinished;" the court held, that such weekly payments were not by way of penalty, but in the nature of liquidated damages. (g) 3 Taunt. 469. As to the construction of an agreement not to let, or demise, or suffer to be occupied, under payment of additional rent of 10l. per acre, Greenslade v. Tapscott, 1 C., M. & R. 55; Rex v. St. Nicholas, Rochester, 5 B. & Ad. 226; 3 Nev. & Man. 21. (h) And see Lowe v. Peers, 4 Burr. 2228, per Lord Mansfield, C. J.; and see this subject discussed in Bringloe 66 v. Goodson, 8 Scott, 71. There the tenant was to pay a further rent of 10l. per acre for ploughing up pasture land, or for managing the farm contrary to the covenants contained in his lease; see also Denton v. Richmond, 1 C. & M. 734. (i) Farrant v. Olmius, 3 B. & Al. 692. (k) Jones v. Green, 3 Y. & J. 298. (1) 2 T. R. 32. Even where a certain sum is agreed to be paid on performance of a specific act (as disclosing a secret or invention), yet if it be reserved as a "penalty of £-," eo nomine, such sum cannot in general be viewed as liquidated damages: the introduction of the word "penalty" per se evincing a contrary intention (m). But in cases between landlord and tenant, where a sum is reserved annually for any specific act of mismanagement of the land, it seems that it may be regarded as liquidated damages, although it be termed a penalty (n). Where a party who had sold a public house agreed not to carry on the business of a licensed victualler within a certain distance, " under the penal sum of 5007., the same to be recovered as and for liquidated damages," Best, C. J. held that the plaintiff was entitled to a verdict for that sum, although he gave no evidence of actual damage (o). 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 (p). The jury cannot obviate the effect of such a contract by giving damages commensurate only with the actual injury sustained; they must find as damages the amount of the increased reservation; and, if they omit so to do, the court will, even after a verdict for smaller damages, grant a new trial (q). And a contract to accept less than the full amount of liquidated damages is not binding, and no bar to an action for the residue, there being no consideration for such contract (r). Proceeding for a Penalty, or more. In all articles guarded by penalties there are two remedies, to be pursued at the option of the party injured: he may, as often as the articles are broken, have toties quoties an equitable relief, upon the footing of the articles themselves, for a partial breach of contract; or he may take the penalty: that is to say, where (m) Smith v. Dickenson, 3 B. & P. 630; see Davies v. Penton, 6 B. & C. 216, 222. As to the effect of a clause in a bond, that interest should run from the date of a bill of exchange by way of penalty, &c., see Orr v. Churchill, 1 H. Bl. 227. (n) Rolfe v. Peterson, 2 Bro. P. C. Toml. ed. 436; and see per Cur. in Jones v. Green, 3 Y. & J. 304. there is a penalty and covenant in the same deed, the party has his election either to bring debt for the penalty, or an action on the covenant for damages. In the former case, the contract is rescinded, and the penalty becomes the debt in law; subject of course to relief in equity, and to restrictions by the mode of proceeding under the 8th & 9th Wm. 3, in a court of law; and if the penalty be paid according to the stipulation of the articles, or be recovered as the debt in law, the party cannot resort back to his covenant or action for the breach of the contract. But he may elect to bring his action on the contract, and then according to the nature of the case may recover, even beyond the amount of penalty, in damages (s). But in case of a bond with a penalty, it seems the obligor cannot recover beyond the amount of the penalty (t). Of the Amount recoverable in other cases. In assumpsit the claims and judgment are for damages. In an action for the recovery of a fixed pecuniary demand, which the defendant has not shown a ground for reducing by proving a partial failure of consideration (u), it is obviously, in general, the duty of the jury to give the plaintiff neither more nor less than the sum specified (x). In Lethbridge v. Mytton (y) it appeared that the defendant, by a settlement made upon his marriage, conveyed estates upon certain trusts, and covenanted with (s) Barton v. Glover, 1 Holt, N.. P. R. 44; Winter v. Trimmer, 1 Bla. Rep. 395; per Littledale, J., in Davies v. Penton, 6 B. & C. 224; Harrison v. Wright, 13 East, 343. In the latter case, the action was in assumpsit upon a charter-party. The defendant, the ship-owner, thereby agreed to proceed to a foreign port, and there load, and to return, &c. The agreement conIcluded with the following clause:"Penalty,for non-performance, 1300l.;" that sum being less than the full freight would amount to. The defendant would not permit the vessel to proceed on the voyage; and the court held that the plaintiff might, on a declaration not proceeding for the penalty, recover damages beyond the amount of such penalty. (t) Tidd, 9 ed. 878, cites 3 Burr. 1345; 1 Bla. R, 373, 387, S. C. But why not interest beyond as damages? (u) See ante, 458, 622, 743. (r) See Bac. Ab. Damages (D 1). But where the plaintiff declared upon an assumpsit to pay, as the price of a horse, "a barleycorn a nail, for each nail in the horse's shoes, doubling every nail;" and averred that there were thirty-two nails in every shoe, which, doubling every nail, came to five hundred quarters of barley; on the cause being tried before Hyde, he directed the jury to give the value of the horse in damages; and accordingly they gave 87.; and held good. James v. Morgan, 1 Lev. 111; 1 Keb. 569, S. C.; ante, 31, 32; and see Thornborough v. Whitacre, 6 Mod. 305; Ld. Raym. 1164, S. C., ante, 32; and per Hardwicke, C., The Earl of Chesterfield v. Janson, 1 Wils. 295. (y) 2 B. & Ad. 772. the trustees to pay off incumbrances on the estate to the amount of 19,000l. within a year: it was held that on his failure to do so, the trustees were entitled to recover the whole 19,000l. in an action of covenant, although no special damage was laid or proved; and an inquisition on which nominal damages had been given was set aside, and a new writ of inquiry awarded. When an action of assumpsit is brought upon a contract for the recovery of general damages, by reason of the non-performance of an act the defendant had undertaken to perform, or the commission of an act he had contracted to avoid, the jury may take into their consideration any consequential injury the plaintiff has sustained; if such injury be the fair and natural result (2) of the defendant's violation of his agreement. Thus, if the buyer of a horse with a warranty, relying thereon, resell him with a warranty, and, being sued thereon by his vendee, offer the defence to his vendor, who gives no direction as to the action, the plaintiff defending that action is entitled to recover from his vendor as well the taxed costs paid to the subvendee, as also the extra costs incurred by the plaintiff in his defence, as part of the damage occasioned by the vendor's breach of warranty (a); though it would be otherwise if the vendee, at the time the horse was returned to him by the subvendee, by a reasonable examination might have discovered the unsoundness, and thus have avoided an useless defence to the action (b). But we have seen that a vendee, on discovering that a horse warranted sound is not so, cannot recover damages for the loss of a good bargain which he had made for the resale of the horse on the faith of its being sound, without showing that the horse had by his, the vendee's, treatment been improved in value (c). Where the defendant, a broker, contrary to the orders of the plaintiff, his principal, purchased goods of an inferior quality, per quod one J. S., who had commissioned the plaintiff to purchase the goods for him, sued the plaintiff for the bad quality of (z) See Vicars v. Wilcocks, 8 East, R. 1; Newman v. Zachary, Aleyn, R. 3; Flower v. Adam, 2 Taunt. 314. (a) Lewis v. Peake, 7 Taunt. 153. Pennell v. Woodburn, 7 Car. & P. 17 ; ante,467. As to claiming costs incurred under an indemnity contract, see ante, 501, 505, 598. In an action for a vexatious and excessive distress the plaintiff having received the taxed costs of his replevin on the distress, was held not entitled to recover as damages the extra costs occasioned to him by the replevin; Grace v. Morgun, 2 Bing. N. C. 534; 2 Scott, 790. (b) Wrightup v. Chamberlain, 7 Scott, 598, ante, 467. (c) Clare v. Maynard, 1 Nev. & P. 701; 6 Ad. & E. 519; 7 C. & P. 741, S. C.; ante, 467. the goods, and recovered damages and costs; it was held that the measure of damages was not the mere difference in price between the two kinds of goods, but the amount of the damages and costs recovered in the action against the plaintiff (d). And where the tenant under a lease, containing a covenant to repair, underlet the premises to a person who entered into a similar covenant, and the original lessor brought an action on this covenant in the first lease, and recovered, it was decided that the damages and costs recovered in that action, and also the costs of defending it, might be assessed as special damages in an action against the undertenant for the breach of his covenant to repair; and the court set aside an inquisition by which only the damages paid by the plaintiff were awarded to him (e). And in an action for the breach of a warranty of a chain cable, the plaintiff may recover the value of the anchor to which the cable was attached, on proving that the cable was broken, and that the crew slipped it in order to avoid danger (f). We have already partially considered what damages are recoverable in an action for not accepting (g) or not delivering (h) goods. "to In Philpotts v. Evans (i), where A. contracted for the purchase of wheat, " to be delivered at Birmingham as soon as vessels could be obtained for the carriage thereof;" and subsequently the market having fallen gave the seller notice that he would not accept it if it were delivered, the wheat being then on its transit to Birmingham: it was held, in an action against A. for not accepting the wheat, that the proper measure of damages was the difference between the contract price and the market price on the day when the wheat was tendered to him for acceptance at Birmingham, and refused, and not on the day when the notice was received by the seller. In an action for not replacing stock lent on a given day according to agreement, the measure of damages is the price or (d) Mainwaring v. Brandon, 8 Taunt. 202; 2 Moore, 125, S. C. The court, however, compelled the plaintiff to undertake that he would assign the goods to the defendant, or sell and account with him for the net proceeds. (e) Neale v. Wyllie, 3 B. & C. 533; 5 D. &. R. 442, S. C. (f) Borradaile v. Brunton, 2 Moore, R. 582; 8 Taunt. 535, S. C. See further as to damages in an action for (g) Ante, 441, 445. |