Synopsis
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1900 edition. Excerpt: ...or non-performance of some act, and damages for the violation cannot be measured in dollars and cents, and the agreement also contains stipulations for the doing or not doing of certain acts, the damages for the violation of which stipulations can be ascertained, and a certain sum of money is stipulated by the parties to be paid, in case that any or all of those provisions shall have been violated, such sum must be taken to be a penalty, upon the ground that being a penalty for one it is a penalty for all. Kemble vs. Ferrin, 6 Bing. 141. Trower vs. Elder, 77 Ill. 452. Berry vs. W'isdom, 3 Oh. St. 241. Carter vs. Strom, 41 Minn. 522. In the case of Trower vs. Elder, supra, it apears that Elder sold to Trower his banking business, together with the bank fixtures, safe and other personal property, and agreed not to go into the banking business again in the town where such bank was located, and he stipulated to pay three-fold the purchase price to Trower, in case he violated any of the stipulations of the contract. Having entered into the same business in the town afterwards, Trower sued for the stipulated damages. Had Elder refused to deliver the safe, for instance, the damages could have been ascertained by the legal rule for the non-delivery of property. But, by going into business again,-he violated a covenant, the damages for whose violation could not be accurately ascertained. The sum stipulated was held to be a penalty as to one covenant, and consequently as to all, and unenforceable. In Carter vs. Strom, supra, the plaintiff and defendant executed an agreement for the exchange of lands. They were to pay off the encumbrances on the land respectively, to furnish abstracts of title and to execute deeds thereof, and they further...
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