Reeves v. Stipp

91 Ill. 609

• Court: Illinois Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

The judgment in this case might be affirmed on the ground the note is an agreement to pay a specific siim of money with interest at the rate of ten per cent per annum from date, but with the privilege to the maker to pay the principal without interest at maturity. As that was not done the absolute agreement remains in force as it was made, and may be enforced against the estate of the maker as it might have been against him if living.

The defence insisted upon is, that the interest reserved in the note from the date thereof, unless paid at maturity, is a. penalty, and as the maker died before the note matured, it is contended the estate, equitably, ought not to be held for it. The fallacy of the position taken lies in the assumption, that the rate of interest reserved from the date of the note, which was evidently intended to secure prompt payment, is penalty and not liquidated damages. Whether the sum named in an agreement to secure performance will be treated as liquidated damages or as penalty, is often a question of much difficulty, but the authorities are to the effect it must be determined in accordance with the intention of the contracting parties, when that can be ascertained. Gobble v. Linder, 76 Ill. 157. It is very clear the parties in this case intended the interest reserved should be the measure of damages in case the note was not paid when due. The parties call it neither penalty nor liquidated damages, but that is a matter of no consequence. It is simply a rate of interest which is lawful by contract under our statute from the date of the note, inserted with a view to secure prompt payment. It is a contract the maker could lawfully make, and if living it could be enforced against him as valid and binding in law. It is not understood how the death of the maker of the note can render void his contract understandingly and fairly entered into. The intestate chose to make his contract in this form, and no reason exists why it should not be enforced as he made it. It may well be understood, from the contract itself, that the damages for non-payment of the principal of the note at maturity have been the subject of calculation and adjustment, and the amount definitely agreed upon by the rate of interest fixed from the date of the note.

It is said, that because of the death of the maker he could not pay the note so as to avoid the interest from date. Were that a valid objection, it might be urged with equal propriety against paying interest on any interest bearing obligations after maturity in case of the death of the makers—a proposition that finds no sanction either in reason or authority.

The judgment must be affirmed.

Judgment affirmed.