Hoag v. McGinnis
New York Supreme Court
Demurrer to declaration. The plaintiff declared in debt for a penalty as stipulated damages, on the following agreement : “ Whereas, unfortunately, a difficulty has heretofore existed between Jacob McGinnis, of, &c. and Harvey Hoag, of, &c. of and concerning sundry deal and traffic, &c. now, therefore, to put an end to all dispute, Sec. it is hereby reciprocally agreed by and between the said parties, that all their difficulties shall be submitted to the arbitrament of B. J.…
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Demurrer to declaration. The plaintiff declared in debt for a penalty as stipulated damages, on the following agreement : “ Whereas, unfortunately, a difficulty has heretofore existed between Jacob McGinnis, of, &c. and Harvey Hoag, of, &c. of and concerning sundry deal and traffic, &c. now, therefore, to put an end to all dispute, Sec. it is hereby reciprocally agreed by and between the said parties, that all their difficulties shall be submitted to the arbitrament of B. J. H. and E. S., both of, &c. to be submitted ns follows, viz: each of said parties' to appear before the said…
1Opinion of the Court
*165 By the Court,
Cowen, J.
The plaintiff’s pleader supposes that the liquidated damages were intended, among other things, as a compensation for not giving notice of the hearing. I think not. The language of the parties is shortly this: “ The award is to be final between the parties, under penalty of $100, to be paid by the defaulting party to the one abiding thereto,” (i. e. the award.) The parties, not being lawyers, supposed that even after the award, one might, as the vulgar phrase is, “ fly” or “ back out,” and the penalty was bung up in terrorem to prevent such a consequence. It is, after…
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