United States Reports (Volume 20); Cases Adjudged in the Supreme Court

Book may have numerous typos, missing text, images, or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1883. Excerpt: ... Tayloe v. Sandiford. justify the court in saying, that the parties were mistaken in the import of the terms they have employed. The counsel for the plaintiff in error supposes, that the contract furnishes clear evidence that the parties intended this sum as liquidated damage*. The circumstance, that it is annexed to the single convenant, stipulating the time when the work shall be completed, is considered as showing that it was intended to fix the damages, for the breach of that covenant. Without deciding on the weight to which this argument would be entitled, if supported by the fact, the court cannot admit, that it is so supported. The engagement, that the said houses shall be completely *finished on or before the 24th day of December next, is as much an engagement for the manner, as for the time of finishing the work, and covers, we think, all the covenants made by the defendants in error in that agreement. The case, therefore, presents the single question, whether an agreement to perform certain work, by a limited time, under a certain penalty, is to be construed as liquidating the damages which the party is to pay for a breach of his covenant. This question seems to have been decided in the case of Smith v. Dickenaon, reported in 3 Bos. & Pul. 630. The plaintiff in error relies on the case of Fletcher v. Dyche, reported in 2 T. R. 32, in which an agreement was entered into to do certain work, within a certain time, and if the work should not be done within the time, specified, to forfeit and pay the sum of 101. for every week, until it should be completed. But the words to forfeit and pay, are not so strongly indicative of a stipulation in the nature of a penalty, as the word penalty itself; and the agreement to pay a specified sum, weekly, during the failure of the party...