Cushing v. Drew
Massachusetts Supreme Judicial Court
Contract on a promissory note. The defendant filed a declaration in set-off founded on an alleged breach of the following written agreement signed by the plaintiff.
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Contract on a promissory note. The defendant filed a declaration in set-off founded on an alleged breach of the following written agreement signed by the plaintiff. “ October 2d, 1865. I, Michael L. Cushing, this day have sold John B. Drew two horses, two one-horse express wagons, and one express harness, and all of the express business I have in East Weymouth, for six hundred and fifty dollars, (five hundred dollars cash and one note of one hundred and fifty dollars, to be paid in six months from date.) And I, Michael L. Cushing, do agree not to do any express business, nor cause any to be…
1Opinion of the CourtChapman, J.
The plaintiff agreed not to do any express business, nor cause any to be done, in East Weymouth, so long as the defendant should be doing business there, and for the violation of this agreement he agreed to pay the defendant the sum of nine hundred dollars. The question presented is whether this sum is to be treated as a penalty or as liquidated damages.
*446The tendency and preference of the law is to regard a sum stated to be payable if a contract is not fulfilled, as a penalty, and not as liquidated damages. Shute v. Taylor, 5 Met. 61. Wallis v. Carpenter, 13 Allen, 19. Yet courts endeavor to…
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