Montague v. Robinson
Supreme Court of Arkansas
Appeal from Mississippi Circuit Court, Chickasawba District; J. F. Gautney, Judge; 1. The court erred in refusing to require the plaintiff to elect upon which count of his complaint he would stand. Liquidated damages, in the proper sense, are a positive debt, excluding evidence of actual damages wherever a breach is proved to which they apply. 5 'Sand.
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Appeal from Mississippi Circuit Court, Chickasawba District; J. F. Gautney, Judge; 1. The court erred in refusing to require the plaintiff to elect upon which count of his complaint he would stand. Liquidated damages, in the proper sense, are a positive debt, excluding evidence of actual damages wherever a breach is proved to which they apply. 5 'Sand. (N. Y.) 640 ; 22 Ark. 475; 31 Cyc. 652; 26 N. E. 348; 86 Pac. 624. 2. Plaintiff sued upon one contract and relied for á recovery upon another. Any material change in a contract made without the consent of the surety releases him. 65 Ark. 550 ;…
1Opinion of the CourtKirby, J.
Appellee was the plaintiff in the suit below, and alleged in his complaint that he made a contract with appellant Montague whereby, for. the .consideration of the merchantable timber down and standing upon a tract of land described as the north half of section 4, township 14, north, range 12 east, the said Montague agreed to cut all the timber upon said tract of land three inches in diameter and over, and to complete said contract within one year. S.aid contract further provided that in the event the .said Montague failed to cut all of said timber within the time mentioned that he should pay…
2Cases cited3 opinions
- Sun Printing and Publishing Assn. v. MooreSupreme Court of the United States · 1902
- Tayloe v. T. & S. SandifordSupreme Court of the United States · 1822
- Stillwell v. Paepcke-Leicht Lumber Co.Supreme Court of Arkansas · 1904
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- Alley Ex Rel. Estate Johnson v. RodgersSupreme Court of Arkansas · 1980
- East Arkansas Lumber Co. v. SwinkSupreme Court of Arkansas · 1917
- Nevada County Bank v. SullivanSupreme Court of Arkansas · 1916
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