"We think that some of these covenants are clearly certain in their nature, and that the damages for their breach may be readily ascertained by a jury. Such is the covenant against wrongfully detaining the plaintiff's moneys or property, and that requiring C. B. Peddie to give a true account of the things committed to his management.
"The sum stipulated in the agreement as damages applies equally to a breach of each of these covenants, and to those upon which the complaint is founded. The defendants contend that this circumstance brings the case within the principle of the cases cited, in support of the fifth rule above laid down; while the plaintiff insists that those cases do not apply where the stipulated damages are not mutually payable on a breach by either party.
"There is no covenant here, on the part of the plaintiff, to pay any stipulated damages. But that circumstance seems to have been of no further importance in the cases referred to than its showing a covenant certain in its nature which was covered by the same stipulated sum. The point on which those decisions turned was that the agreement contained some clauses sounding in uncertain damages, and others relating to pecuniary payments, or measurable by a pecuniary standard, to all of which clauses the sum stipulated as damages applied alike, and was to become payable on a breach of any one of them. Then inasmuch as that sum could be regarded only as a penalty in respect of the clauses payable in money, or of a certain nature, it could not be considered as any thing more than a penalty in respect of the clauses which were in their nature uncertain. The same sum, expressed as damages, payable for a breach of any of several covenants, cannot be deemed a penalty in respect of one, and liquidated damages for a breach of another of those covenants. If it be stipulated damages in respect of one covenant, it must be the same as to all.
"This being the rule, it can make no difference whether the certain covenant was one of those to be performed by the party guilty of a breach of the uncertain covenant, which is the subject of the suit, or was one to be kept by the plaintiff; and, therefore, it is of no consequence whether there was or was not any covenant of that description, on the part of the plaintiff, covered by the sum stipulated as damages, or, in short, whether the plaintiff agreed to pay any stipulated damages at all. The principle applies, if there be any covenant, covered by the amount expressed to be paid as stipulated damages, which is certain in its nature, although all the covenants are made by the defendant.
"We are satisfied that the judge was right in his decision at the trial, that the sum payable by this agreement was a penalty, and not stipulated damages.
"The plaintiff makes a point that he should have been permitted to prove special damages, on the judge ruling that the sum stipulated was a penalty. But it does not appear that he offered to make any such proof at the trial, or that he asked a judgment for nominal damages. His complaint averred no damages, either special or nominal; and as he did not raise the question of its amendment by motion, or of the admission of the evidence at the trial, it is now too late to bring it forward. The judgment must be affirmed." See, also, Curry v. Larer, 7 Barr, 470; Gower v. Saltmarsh, 11 Mo. 271.
1 Astley v. Weldon, 2 B. & P. 346; 1 Pothier, by Evans, 90; 2 Ib. 81; Leighton v. Wales, 3 M. & W. 545; Bringloe v. Goodson, 8 Scott, 71; 5 Bing. N. C. 738; Lowe v. Peers, 4 Burr. 2225; Denton v. Richmond, 1 C. & M. 734; Birch v. Stephenson, 3 Taunt. 469; Hamilton v. Overton, 6 certain smith's and ironmonger's work in a church within a limited time, and, in default of so doing, to pay £10 per week for all the time intervening between the limited time and the time when the work should be finished, it was held that it was a case of liquidated damages, in which the sum was not to be considered as a penalty, but as an estimate of damages which was binding on the parties. "The weekly payments," says Ashhurst, J., "are in the nature of liquidated damages, and are such a kind of penalty, if they may be called by that name, as a court of equity would not relieve against. The object of the parties in naming this weekly sum was to prevent any altercation with respect to the quantum of damages which the defendant might sustain by reason of the non-performance of the contract. It would have been difficult for the jury to have ascertained what damages the defendant had really suffered by the breach of the agreement; and therefore it was proper for the contracting parties to ascertain it by their agreement."1 And on the same principle, where an apothecary agreed not to practise in a given circuit, under a penalty of £500, it was held that the sum mentioned, though called a penalty, was in fact liquidated damages.2 So in another case where the defendant became bound in the sum of £ 5,000, by way of liquidated damages, and not of penalty not to carry on his trade in a certain district, the same rule was applied.3 So, a bond to take down a building and remove the rubbish by a certain day "under a penalty of £10 per week" for the delay, makes the sum liquidated damages, and not a penalty.4
§ 1474. Again, where it appears from the nature and circumstances of the case that the sum agreed upon has been fairly calculated, and is not grossly excessive or unjust, it will be treated as liquidated damages, although the actual damages be susceptible of ascertainment.1 Thus, in an agreement to pay a higher rent in case the lessee does not reside on the premises,2 or to pay $1,000 in case of non-performance of the contract,3 or not to permit a stone weir to be enlarged "under the penalty of double the yearly rent," 4 or to pay a certain additional rent for every acre of land the tenant should plough,5 the sums or penalties have all been treated as liquidated damages. So, also, an agreement to pay a sum of money in goods at a stipulated price, will be binding according to its terms,6 unless it appear that the stipulated price is gross and unconscionable.7