Miller v. Caldwell , 1846 Pa. LEXIS 198 ( 1846 )

Per Curiam.

The assignment being conditional, and not an absolute transfer of the judgments, was a contract of indemnity ; and as the damages, recoverable for the breach of it, were not stipulated, they consequently could not transcend the amount of the trouble and loss. It was not intended that the defendant should make a job of the contract, or pocket any more than compensation and reimbursement. Stipulated damages can exist only by force of an unequivocal agreement to pay a specified sum, as liquidated satisfaction fixed beforehand by the parties. ,The assignment is in the nature of a penalty, against which the court below was as competent to relieve as a chancellor would be. Nor is the objection to the form of the action better founded. The agreement has been executed so far as it was executory; and it would puzzle a pleader to find in it any particular covenant for payment of the excess to the plaintiff. This was received as so much paid to his use¿ and assumpsit was consequently the proper action.

Judgment affirmed.