Day v. Frank

127 Mass. 497, 1879 Mass. LEXIS 122

Opinion

Morton, J.

The statute provides that every person licensed to sell intoxicating liquor shall give a bond with sufficient surety or sureties “ conditioned for the payment of all costs, damages and fines incurred by violation of the provisions of this act.” St. 1875, c. 99, § 9.- The same section provides a form of the bond, in which the condition is that the licensee “ shall well and truly comply with all the provisions of the act under which said license is issued, and also shall pay all damages which shall be recovered from him under and pursuant to the provisions of said act.”

The bond in suit follows the words of this form. The suit is brought by and for the benefit of one Ann Riley, who recovered a judgment in an action of tort against the licensee and principal obligor in the bond for three violations of the fifteenth section of the act, which provides that whoever shall sell or give intoxicating liquor to any minor “shall forfeit one hundred dollars for each offence, to be recovered by the parent or guardian of such minor in an action of tort.”

The surety now contends that the condition of the bond does not cover the case of what he terms a forfeiture under the fifteenth section of the statute. But such a construction would defeat the manifest intention of the Legislature. The object is to require of the licensee sureties that he will comply with all the provisions of the statute. The one hundred dollars which, under the fifteenth section, may be recovered for each offence, is not strictly a forfeiture, but is rather in the nature of fixed or liquidated damages, which may be recovered in an action of tort by the party injured.

We can have no doubt that, the language of the statute, the “ damages incurred by violation of the provisions of this act,” and the equivalent language in the form of the bond, “ all damages which shall be recovered from him under and pursuant to the provisions of said act,” were intended by the Legislature to include such liquidated damages as might be recovered under the fifteenth section. It follows that the rulings at the trial were correct. Exceptions overruled.