Lincoln v. Granite Co., 56 Ark. 405, 19 S. W. 1056; De Graff v. Wickhain, 89 Iowa, 720, 52 N. W. 503, 57 N. W. 420; Fruin v. Railway Co., 89 Mo. 397, 14 S. W. 557; Texas & St. L. Ry. Co. v. Rust (C. C.) 19 Fed. 239; Hennessy v. Metzger, 152 111. 505, 38 N. E. 1058, 43 Am. St. Rep. 267; Curtis v. Van Bergh, 161 N. Y. 47, 55 N. E. 398; Kunkel v. Wherry, 189 Pa. 198, 42 Atl. 112, 69 Am. St Rep. 802; Illinois Cent. R. Co. v. Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729, 78 Am. St. Rep. 933; Drumheller v. Surety Co., 30 Wash. 530, 71 Pae. 25; Malone v. City of Philadelphia, 147 Pa. 416, 23 Atl. 628; Crawford v. Heatwole, 110 Va. 358, 66 S. E. 46, 34 L. R. A. (N. S.) 587 and note. But see, contra, where the stipulation was greatly in excess of any possible damage from the delay. Cochran v. Railway Co., 113 Mo. 359, 21 S. W. 6; Clements v Railroad Co., 132 Pa. 445, 19 Atl. 274, 276; Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490. See "Damages," Dec. Dig. (Key-No.) § 79; Cent. Dig. § 164

21 Winch v. Ice Co., 86 N. Y. 618; Welch v. McDonald, 85 Va. 500, 8 S. E. 711. See "Damages;' Dec. Dig. (Key-No.) § 85; Cent. Dig. §§ 179-187.

22JAQUITH v. HUDSON, 5 Mich. 123, Throckmorton Cas. Contracts, 35."). See, also, Myer v. Hart, 40 Mich. 517, 29 Am. Rep. 553; Jaqua v. Heading-ton, 114 Ind. 309, 16 N. E. 527; Brewster v. Edgerly, 13 N. II. 275; Condon v. Kemper, 47 Kan. 126, 27 Pac. 829, 13 L. R. A. 671; Cotheal v. Talmage, 9 N. Y. 551, 61 Am. Dec. 716; Colwell v. Lawrence, 38 N. Y. 71. "The intention is not all controlling, for in some cases the subject-matter and surroundings of the contract will control the intention where equity absolutely demands it." Streeper v. Williams, 48 Pa. 450. See "Damages," Dec. Dig. (Key-No.) § 77; Cent. Dig. § 156.

22 Sun Printing & Publishing Ass'n v. Moore, 183 U. S. 642, 22 Sup. Ct 240, it was said in a late case in the supreme court of the United States,24 "that when a claimed-disproportion has been asserted in actions at law it has usually been an excessive disproportion between the stipulated sum and the possible damages resulting from a trivial breach apparent on the face of the contract, and the question of disproportion has been simply an element entering into the consideration of the question of what was the intent of the parties, whether bona fide to fix the damages, or to stipulate the payment of an arbitrary sum as a penalty, by way of security."

(3) If a debt is to be paid by installments, it is not imposing a penalty to provide that on default in any one payment the entire balance of unpaid installments shall fall due.25

(4) If the contract contains a number of terms, some of which are of a certain value, or if it contains a number of terms of widely different value, and the penalty is applied to a breach of any one of them, it is not recoverable as liquidated damages, however strongly the parties may have expressed their intention that it shall be so.26 In a leading case on this point the defendant had agreed to act, and conform to all the regulations, at plaintiff's theater for several seasons, the plaintiff to pay him 3. 6s. 8d. for every night that the theater should be open for performance, and it was agreed that, for a breach of any term of the agreement by either party, the one in default should pay the other 1,000 which sum was thereby declared to be "liquidated and ascertained damages, and not a penalty." The court held that, in spite of the explicit statement of the parties that the sum was not to be regarded as a penalty, it must be so regarded. If the penal clause had been limited to breaches uncertain in their nature and amount it might, as was thought, have had the effect of ascertaining the damages; "but," it was said, "in the present case the clause is not so confined; it extends to the breach of any stipulation by either party. If, therefore, on the one hand, the plaintiff had neglected to make a single payment of 3. 6s. 8d. per day, or, on the other hand, the defendant had refused to conform to any usual regulation of the theater, however minute or unimportant, it must have been contended that the clause in question, in either case, would have given the stipulated damages of 1,000. But that a very large sum should become immediately payable in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavored to relieve, by directing juries to assess the real damages sustained by the breach of the agreement." 27

46 L. Ed. 3G6. See, also, Brooks v. City of Wichita, 114 Fed. 297, 52 C. C. A. 209; Wood v. Paper Co., 121 Fed. S18, 58 C. C. A. 256; Taylor v. Newspaper Co., 83 Minn. 523, 86 N. W. 760, 85 Am. St. Rep. 473; Knox Rock Blasting Co. v. Stone Co., 64 Ohio St 361, 60 N. E. 563; Emery v. Boyle, 200 Pa. 249, 49 Atl. 779; Garst v. Harris, 177 Mass. 72, 58 N. E. 174; Guerin v. Stacy, 175 Mass. 595, 56 N. E. 892. See "Damages," Dec. Dig. (Key-No.) § SO; Cent. Dig. §§ 170-175.

24 Sun Printing & Publishing Ass'n v. Moore, 183 U. S. 642, 672, 22 Sup. Ct. 240, 46 L. Ed. 366. See "Damages;' Dec. Dig. (Key-No.) § 80; Cent. Dig. §§ 170-175.

25Protector Loan Co. v. Grice (Ct. App.) 5 Q. B. Div. 592; Dean v. Nelson, 10 Wall. 158, 19 L. Ed. 926. So of a stipulation that, if interest is not paid, the principal shall become due. Schooley v. Romain, 31 Md. 574, 100 Am. Dec. 87; Mobray v. Leckie, 42 Md. 474. See "Damages," Dec. Dig. (Key-No.) § 78; Cent. Dig. § 163.

26 Kemble v. Farren, 6 Bing. 141; Carter v. Strom, 41 Minn. 522, 43 N. W. 394; Watts v. Camors, 115 U. S. 353, 6 Sup. Ct. 91, 29 L. Ed. 406; McPher-son v. Robertson, 82 Ala. 459, 2 South. 333; Lampman v. Cochran, 16 N. Y. 275; Wilhelm v. Eaves, 21 Or. 194, 27 Pac. 1053, 14 L. R. A. 297; Hough v. Kugler, 36 Md. 186; Daily v. Litchfield. 10 Mich. 29; Trustees of First Orthodox Congregational Church v. Walrath, 27 Mich. 232; Trower v. Elder, 77 111. 452; Lyman v. Babcock, 40 Wis. 503; Monmouth Park Ass'n v. Warren, 55 N. J. Law, 598, 27 Atl. 932. See "Damages," Dec. Dig. (Key-No.) § 78; Cent. Dig. § 163.