Swift v. Crow , 17 Ga. 609 ( 1855 )

By the Court.

Starnes,

J. delivering the opinion.

Whether or not the amount that a party to a bond like that before us agrees to pay upon condition, is in the nature of stipulated damages or of a penalty, is frequently a matter of no ■ little difficulty to determine. One thing in this connection seems clearly settled, viz: that the policy of the Courts, is, if' possible, to view such sum as in the nature of a penalty. (Ch. on Con. 862, and see cases there cited.)

Notwithstanding this, if the agreement provide that a certain sum shall be paid in the event of performance or non-performance of a particular specified act, in regard to which damages may arise in case of default, and there be no words evincing an intention that the sum reserved in case of a breach shall be viewed only as a penalty, such sum may be recovered as liquidated damages. (Leighton vs. Wales, 3 Mees. & W. 545. Ch. on Con. 866.)

But where the covenant is to perform several things or pay the sum specified, and the claim may extend to the breach of •any stipulation, in such case, it seems to be well settled, that the sum specified should be considered in the nature of a penalty. (Astley vs. Weldon, 2 Bos. & P. 345. Kemble vs. Farren, 6 Bing. 141. Davies vs. Panton, 6 B. & C. 210. Ch. on Con. 863, 864. Sedg. on Dam. 406, 407, 408.)

Now the agreement in this case was first to give acceptable ■security on the note in ten days ; secondly, before the first day ■of May then next, to give a mortgage on real property as additional security; thirdly, to pay the fee for recording the same. Here, then, are two or three stipulations, a failure in 'either of which would appear to be a breach of the bond. And ■yet, if that failure were only to pay the recording fee, would it not be most unreasonable that the sum of One Hundred Dollars should be paid as damages ?

In consideration of this, and forasmuch as policy favors the view which regards the sum thus stipulated to be paid as a penalty, rather than as settled or liquidated damages, we feel it our duty to hold, that the plaintiff is entitled to recover on this bond only such damages as he may be proven to have suffered by breach of the same.

Judgment affirmed.