Legal Opinion

Spear v. Smith

Court for the Trial of Impeachments and Correction of Errors

Decided July 15, 1845PublishedCited by 8 opinions

Error to Monroe C. P., where Smith sued Spear and declared in debt for $100 on a written submission to arbitration. By the submission, the defendant agreed to give up to the plaintiff the possession of certain property concerning which there was a contract between the parties, and the arbitrators were to decide what damages either party should have in consequence of the non-fulfilment of the contract; and on account of certain other matters of small importance.

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Error to Monroe C. P., where Smith sued Spear and declared in debt for $100 on a written submission to arbitration. By the submission, the defendant agreed to give up to the plaintiff the possession of certain property concerning which there was a contract between the parties, and the arbitrators were to decide what damages either party should have in consequence of the non-fulfilment of the contract; and on account of certain other matters of small importance. The submission contained the following clause: “ I the said Moses Smith agree to pay to the said William W. Spear the sum of one…

1Opinion of the Court

By the Court, Bronson, Ch. J.

Where there is an agreement to pay a gross sum in the event of the non-performance of a contract, and the case is such that a jury can ascertain with reasonable certainty how much damages the injured party has •actually sustained by the non-performance, there the courts are strongly inclined to regard the gross sum as a penalty, and not as liquidated damages. (Hoag v. McGinnis, 22 Wend. 163; Kemble v. Farren, 6 Bing. 141; Dakin v. Williams, 17 Wend. 447.) Here the arbitrators were to do nothing but determine how much damages should be paid by one party to the…

2Cases cited1 opinion

  1. Hoag v. McGinnisNew York Supreme Court · 1839

3Cited by8 opinions

  1. Bagley v. . PeddieNew York Court of Appeals · 1857
  2. Mason v. Callender, Flint, & Co.Supreme Court of Minnesota · 1858
  3. Williams v. GreenSupreme Court of Arkansas · 1854
  4. Colwell v. . LawrenceNew York Court of Appeals · 1868
  5. Dill v. LawrenceIndiana Supreme Court · 1887

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