Tompkins, J.,
delivered, the opinion of the Court.
On the 29th day of September, Platte county instituted an action of debt against William Moore, David Hunt and John P. Hunt, in the Circuit court of that county, and obtained a judgment, to reverse which, this appeal is prosecuted.
The first count in the declaration is in these words : “ Platte county complains of William Moore, David Hunt and John P. Hunt, of a plea that they render to the said plaintiff the sum of $1,570, &e., which they owe to, and unjustly detain from, her: for that whereas the said defendants heretofore, to wit, on the 12th of June, in the year 1840, at, &e., made their certain writing obligatory, sealed with their seal, and to the court here shown, the date whereof is the day and year aforesaid, and which said writing obligatory is in the words and figures following, to wit: ‘ Know all men, by these, presents, that we, William Moore as principal, and David Hunt and John P. Hunt, as securities, are held and firmly bound unto the county of Platte in the sum of $1,570, not as a penalty, but as liquidated damages, to the payment of which sum, well and truly to be made, we hind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the 12th day of June, 1840.
“ ‘ The condition of the above obligation is such, that whereas the above bound William Moore has this day contracted with Jesse Morin, Elijah Moore, and Demetrius A. Sutton, superintendents of the court-house in Platte City, for covering said court-house, which said covering is to he completed by the first day of June, 1842, in the following manner, to wit: — The tinning of the roof to be done with good tin, in the following manner: all necessary covering and securing of cornice to roof and cupola, and down to cupola to be completed: for which the said superintendents, in their official capacity, agree to pay the said Wm. Moore the sum of $758, in any money which is current in the country; one-half of which is to be paid when the work is half done, the balance when completed and received by the superintendents. Now, if the said William Moore shall well and truly complete the contract as above specified, then the above obligation to be void; otherwise, to remain in full force and virtue.’ ” (Signed, as above, by the obligors.)
[471]*471Then the breach is assigned, that the said William Moore did not do the tinning of the said roof in the best manner, but on the contrary thereof, &e.
The second count is as follows: — “And whereas, also, the said defendants afterwards, to wit, on the said twelfth day of June, in the said year 1840, at the' county of Platte aforesaid, by their certain other writing obligatory, sealed with their seals, and here to the court shown, the date whereof is the day and year last aforesaid, acknowledged to be held and firmly bound to the plaintiff in the sum of $1,570, not as a penalty, but as liquidated damages to be paid by the said defendants to the said plaintiff, upon the failure of the said William Moore to comply with certain conditions in said writing obligatory mentioned, among which conditions in said writing obligatory is this, that the said William Moore should cover the court-house in Platte City with good tin in the best manner; and the said plaintiff saith, that the said plaintiff caused the said roof of the said court-house to be framed and prepared for the reception of the tin in, a reasonable time, to wit, on and by the first day of August, in the year 1841, at the county of Platte aforesaid, of which the said defendants then and there had notice, and the said plaintiff, in fact, saith that the said William Moore did not do the said tinning of the said courthouse in the best manner, but, on the contrary thereof, did the same in a manner so bad and so unworkmanlike, that, &e., by means of which said last-mentioned breach the said last-mentioned writing obligatory became forfeited, &c.”
The defendants then crave oyer, and set out the bond of William Moore, David Hunt, and JohnP.Hunt,as it is set out in the first count in this declaration; after this bond so set out, follows another writing, signed by William Moore, in the words following, to wit: — ’“It is further understood, that the covering of the main body of the building is to be completed so soon as practicable after the roof is framed and prepared by the carpenters for the reception of the tin, anything in the foregoing bond to the contrary notwithstanding. This day and year aforesaid,
(Signed) “William Moore.” [Seal.]
To this declaration, consisting of two counts, the defendants pleaded, and on the issues made a verdict was found for the plaintiff, and judgment was entered up accordingly for the sum of $1,570, the stipulated damages. The defendants moved for a new trial, and in arrest of judgment. Both of these motions were overruled.
Two questions arise here, one of which it is necessaay to decide now, and the other, if not now necessary to be decided, it may hereafter become necessary to decide.
1. Ought this judgment to have been arrested ?
2. Is the sum of $1,570, in the declaration mentioned, to be considered as a penalty, or as liquidated damages ?
The first count in this declaration is worth nothing; its commencement is formal enough, but when we come to the statement of the cause of action, we find nothing more than that the defendant made his certain writing obligatory, of which writing a copy is then given. In the statement of the cause of action, it is expected that the plaintiff will set out the legal effect of the instrument of writing declared on; as, for instance, in the present case, that the defendants, by their [472]*472writing obligatory, bound themselves to pay, &c., to the plaintiff, on the condition therein mentioned. See the caso of Perkins vs. Reed, administrator of Nash, decided at the July term of this Court for the last year; see, also, the case of Muldrow vs. Tappin, 6 vol. Mo. Decisions, p.267, in which last case the opinion was delivered by the late Judge McGirk, and he there cites several authorities. The best authority, however, for such pleaders is the form of a declaration in debt from Chitty.
But the second count of this declaration is more glaringly defective, if possible, than the first; oyer is given of two instruments of writing, the one under seal, executed by three parties, to wit, William Moore, David Hunt, and John P. Hunt, the other not under seal, and executed by William Moore alone; it has a scrawl at the end of the name of William Moore, by way of seal, but that is not so declared or stated in the instrument of writing; but it is immaterial whether this latter instrument be under seal or not, for it is certain the plaintiff cannot, in the same count, or even in the same declaration having different counts, declare on two contracts, the one of which is made by three men, and the other by one of those three.
The action upon an express contract, whether it be by deed- or merely in writing, or by parol, must in general be brought against the party who made it, either in person or by agent. (1 Chitty’s Plead., 86.) Let it be granted that the latter writing, of which oyer is craved and given, is an amendment of, or an addition to, the first, it is still very evident Moore is not able to alter, or change in any manner the contract made with Platte county by himself and David Hunt and John P. Hunt, his two securities in the said bond.
Free access — add to your briefcase to read the full text and ask questions with AI
Tompkins, J.,
delivered, the opinion of the Court.
On the 29th day of September, Platte county instituted an action of debt against William Moore, David Hunt and John P. Hunt, in the Circuit court of that county, and obtained a judgment, to reverse which, this appeal is prosecuted.
The first count in the declaration is in these words : “ Platte county complains of William Moore, David Hunt and John P. Hunt, of a plea that they render to the said plaintiff the sum of $1,570, &e., which they owe to, and unjustly detain from, her: for that whereas the said defendants heretofore, to wit, on the 12th of June, in the year 1840, at, &e., made their certain writing obligatory, sealed with their seal, and to the court here shown, the date whereof is the day and year aforesaid, and which said writing obligatory is in the words and figures following, to wit: ‘ Know all men, by these, presents, that we, William Moore as principal, and David Hunt and John P. Hunt, as securities, are held and firmly bound unto the county of Platte in the sum of $1,570, not as a penalty, but as liquidated damages, to the payment of which sum, well and truly to be made, we hind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the 12th day of June, 1840.
“ ‘ The condition of the above obligation is such, that whereas the above bound William Moore has this day contracted with Jesse Morin, Elijah Moore, and Demetrius A. Sutton, superintendents of the court-house in Platte City, for covering said court-house, which said covering is to he completed by the first day of June, 1842, in the following manner, to wit: — The tinning of the roof to be done with good tin, in the following manner: all necessary covering and securing of cornice to roof and cupola, and down to cupola to be completed: for which the said superintendents, in their official capacity, agree to pay the said Wm. Moore the sum of $758, in any money which is current in the country; one-half of which is to be paid when the work is half done, the balance when completed and received by the superintendents. Now, if the said William Moore shall well and truly complete the contract as above specified, then the above obligation to be void; otherwise, to remain in full force and virtue.’ ” (Signed, as above, by the obligors.)
[471]*471Then the breach is assigned, that the said William Moore did not do the tinning of the said roof in the best manner, but on the contrary thereof, &e.
The second count is as follows: — “And whereas, also, the said defendants afterwards, to wit, on the said twelfth day of June, in the said year 1840, at the' county of Platte aforesaid, by their certain other writing obligatory, sealed with their seals, and here to the court shown, the date whereof is the day and year last aforesaid, acknowledged to be held and firmly bound to the plaintiff in the sum of $1,570, not as a penalty, but as liquidated damages to be paid by the said defendants to the said plaintiff, upon the failure of the said William Moore to comply with certain conditions in said writing obligatory mentioned, among which conditions in said writing obligatory is this, that the said William Moore should cover the court-house in Platte City with good tin in the best manner; and the said plaintiff saith, that the said plaintiff caused the said roof of the said court-house to be framed and prepared for the reception of the tin in, a reasonable time, to wit, on and by the first day of August, in the year 1841, at the county of Platte aforesaid, of which the said defendants then and there had notice, and the said plaintiff, in fact, saith that the said William Moore did not do the said tinning of the said courthouse in the best manner, but, on the contrary thereof, did the same in a manner so bad and so unworkmanlike, that, &e., by means of which said last-mentioned breach the said last-mentioned writing obligatory became forfeited, &c.”
The defendants then crave oyer, and set out the bond of William Moore, David Hunt, and JohnP.Hunt,as it is set out in the first count in this declaration; after this bond so set out, follows another writing, signed by William Moore, in the words following, to wit: — ’“It is further understood, that the covering of the main body of the building is to be completed so soon as practicable after the roof is framed and prepared by the carpenters for the reception of the tin, anything in the foregoing bond to the contrary notwithstanding. This day and year aforesaid,
(Signed) “William Moore.” [Seal.]
To this declaration, consisting of two counts, the defendants pleaded, and on the issues made a verdict was found for the plaintiff, and judgment was entered up accordingly for the sum of $1,570, the stipulated damages. The defendants moved for a new trial, and in arrest of judgment. Both of these motions were overruled.
Two questions arise here, one of which it is necessaay to decide now, and the other, if not now necessary to be decided, it may hereafter become necessary to decide.
1. Ought this judgment to have been arrested ?
2. Is the sum of $1,570, in the declaration mentioned, to be considered as a penalty, or as liquidated damages ?
The first count in this declaration is worth nothing; its commencement is formal enough, but when we come to the statement of the cause of action, we find nothing more than that the defendant made his certain writing obligatory, of which writing a copy is then given. In the statement of the cause of action, it is expected that the plaintiff will set out the legal effect of the instrument of writing declared on; as, for instance, in the present case, that the defendants, by their [472]*472writing obligatory, bound themselves to pay, &c., to the plaintiff, on the condition therein mentioned. See the caso of Perkins vs. Reed, administrator of Nash, decided at the July term of this Court for the last year; see, also, the case of Muldrow vs. Tappin, 6 vol. Mo. Decisions, p.267, in which last case the opinion was delivered by the late Judge McGirk, and he there cites several authorities. The best authority, however, for such pleaders is the form of a declaration in debt from Chitty.
But the second count of this declaration is more glaringly defective, if possible, than the first; oyer is given of two instruments of writing, the one under seal, executed by three parties, to wit, William Moore, David Hunt, and John P. Hunt, the other not under seal, and executed by William Moore alone; it has a scrawl at the end of the name of William Moore, by way of seal, but that is not so declared or stated in the instrument of writing; but it is immaterial whether this latter instrument be under seal or not, for it is certain the plaintiff cannot, in the same count, or even in the same declaration having different counts, declare on two contracts, the one of which is made by three men, and the other by one of those three.
The action upon an express contract, whether it be by deed- or merely in writing, or by parol, must in general be brought against the party who made it, either in person or by agent. (1 Chitty’s Plead., 86.) Let it be granted that the latter writing, of which oyer is craved and given, is an amendment of, or an addition to, the first, it is still very evident Moore is not able to alter, or change in any manner the contract made with Platte county by himself and David Hunt and John P. Hunt, his two securities in the said bond. By the terms of the bond the court-house was to. be covered by the first day of June,1842; and by the terms of the addition made to the bond of the principal and security, by Moore alone, the principal, the completion of the covering of the building is required to take place as soon as possible after the roof is framed and prepared by the carpenters for the reception of the tin : and in this second count it is averred, that “ the said plaintiff caused the roof of the said court-house to be framed and prepared for the reception of the tin in a reasonable time, to wit, on and by the first day of August, 1841,” and that the defendant had notice thereof. Whether this change be for the benefit of the plaintiff or the defendant does not appear on this record, nor is it material for the present purpose; suffice it to say, that it is a change, and a material change, and a change made without the consent of the security. This second count of the •declaration is framed, then, on two contracts, the one made betwixt the county of Platte, plaintiff in this action, and the three defendants; the other made betwixt the said county of Platte, plaintiff, and one of those defendants,William Moore, without the concurrence of his two securities. This is so glaringly wrong, that it is useless to comment on it: the first count, then, is a nullity; it is just as if the plaintiff had filed the defendant’s bond in the clerk’s office, and ordered a writ to be issued thereon, and proceeded to trial on such bond and writ. The second is still worse: the two securities of Moore being sued on a bond which the record shows they did not make. Moreover, pleas were filed to this declaration, which were demiirred to by the plaintiff, and the demurrers sustained by the Circuit Court. [473]*473These demurrers also refer back to the declaration, and enable the Court now to inquire into its sufficiency. The judgment must be arrested.
2. Whether this sum of $1,570 mentioned is to be regarded as a penalty, or as liquidated damages, is not so easily to be decided as the first point made here. The books furnish no very certain rule, (see Chitty on Contracts, p. 863 to 866,) and whether the parties call it a penalty or liquidated damages does not seem to have much influence with the courts in ascertaining the intentions of the parties as expressed in the contract. The courts seem rather to lean against construing agreements so as to compel the parties to pay the sum as stipulated damages, and are rather disposed to regard the sum of money agreed to be paid as a penalty to enforce the performance of the contract. In this case the contract was to cover the court-house by the first day of June, 1842, with good tin, in the best manner, all necessary covering and securing of cornice to roof and cupola, and dome of cupola to be completed. This, then, is a building contract to do several things in a special manner, 'and in a given time. It can hardly be imagined that it was intended that the defendants were expected to pay $1,570 if they failed to finish this work on the exact day; for example, if they failed by one, or even two days, or if there were only a slight neglect in the execution of a particular part of the work. This Court, as at present advised, is disposed to regard the sum of $1,570 in the declaration mentioned as a penalty.
The judgment of the Circuit Court is reversed, and the cause remanded.