Bryton v. Marston
Appellate Court of Illinois
Appeal from the Superior .Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. An action of assumpsit was brought by appellee against appellants upon the following contract: “Articles of agreement made the 27th day of August, 1884, between Hate Salsbury and Frederick Bryton, of the city, county and State of Hew York, parties of the first part, and Lawrence Marston, of the same place, party of the second part, witnessetli as follows: The parties of the first part…
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Appeal from the Superior .Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. An action of assumpsit was brought by appellee against appellants upon the following contract: “Articles of agreement made the 27th day of August, 1884, between Hate Salsbury and Frederick Bryton, of the city, county and State of Hew York, parties of the first part, and Lawrence Marston, of the same place, party of the second part, witnessetli as follows: The parties of the first part agree to purchase from the party of the second part a certain original play or drama, written and composed by the said…
1Opinion of the CourtMoran, J.
The question presented is whether the clause of the contract which provides that “in case of failure to perform any of the agreements of said sale, the parties bind each unto the other in the sum of $5,000, as fixed and settled damages, tobe paid by the failing party or parties,” is to be treated as creating a penalty or as an agreement liquidating the damages to be recovered in case of breach.
It is well settled that the language used by the parties in framing such a clause in a contract is not controlling; that if a strict construction of the terms used would result in oppression, or in…
2Cases cited3 opinions
- Cotheal v. . TalmageNew York Court of Appeals · 1854
- Scofield v. TompkinsIllinois Supreme Court · 1880
- Tiernan v. HinmanIllinois Supreme Court · 1855
3Cited by2 opinions
- Poppers v. MeagherIllinois Supreme Court · 1893
- Goodyear Shoe Machinery Co. v. Selz, Schwab & Co.Appellate Court of Illinois · 1894