Cowdrey v. Carpenter
The Superior Court of New York City
Appeal from a judgment entered, upon a verdict, recovered by the plaintiff on a trial before Mr. Justice Monoribf and a jury, on the 12th of May, 1862. The action was brought by Bath aniel A. Cowdrey against Jacob Carpenter. The facts were as follows : In August, 1860, the defendant sold to the plaintiff a bond and mortgage of $2,000. The mortgage Covered two lots of land' in this city. It was made by one Coit to E. H. Hawke, the defendant’s assignor.
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Appeal from a judgment entered, upon a verdict, recovered by the plaintiff on a trial before Mr. Justice Monoribf and a jury, on the 12th of May, 1862. The action was brought by Bath aniel A. Cowdrey against Jacob Carpenter. The facts were as follows : In August, 1860, the defendant sold to the plaintiff a bond and mortgage of $2,000. The mortgage Covered two lots of land' in this city. It was made by one Coit to E. H. Hawke, the defendant’s assignor. There was a prior mortgage of $5,000 covering.the two lots, and also other property adjoining. This prior mortgage was made by B. W. Bonney to…
1Opinion of the Court
By the Court.*—Monell, J.
If the contract is valid, the plaintiff is entitled to recover the $2,000, as damages liquidated *375and agreed upon by the parties. The damages relate to a single breach or default; they were entirely uncertain, and were the proper subject of liquidation by the parties; they were so liquidated, and hence are not a penalty. (Clement a. Cash, 21 N. Y., 253.)
If the defendant’s contract is to .be deemed a promise that he would procure an order of sale containing the stipulated provision, it is a contract which he had not the power to perform ; and this must have been known…
2Cases cited3 opinions
- Clement v. . CashNew York Court of Appeals · 1860
- Rathbone v. ClarkNew York Court of Chancery · 1842
- Hall v. BergenNew York Supreme Court · 1854