M’OAULL v. annum. 41
be paid for a non-observance of it. Howard v. Hcpkyns, 2 Atk. 371;
Bird v. Lake, 1 Hem. & M. 111; For v. Scard, 33 Beav. 327; Sloman
v. Walter, 1 Brown, C. C. 418; Jones v. Heavens, 4 Ch. Div. 636.
Whether the language of the contract is to be construed as a pen- `
alty or as liquidated damages is to be determined from itslanguage .
and its presumed intent to be gathered from the circumstances of , ·
the parties and the nature of the agreement. "A penalty," says Lord
Looounoaouen, in Hardy v. Martin, 1 Cox, Ch. 26, "is never considered
in this court as the price of doing a thing which a man has expressly
agreed not to do; but if the real meaning and intent of the contract. ,
is that a man should have the power, if he chooses, todo a particu-
lar act upon the payment of a certain specified sum, the power to do
the act upon the payment of the sum agreed on is part of the ex-
pressvcontract between the parties." Vincent v. King,·13»How. Pr. · ‘ . V
234-238; Kerr, Inj. 409. ` V T ` A
In Gales v. Sims, 5 De Gex, M. & G.,lLcrd Justice Turman says, upon .
this point, (p. 1:) "The question in such cases, as ~I’ conceive, is,
whether the clause is inserted by way of penalty or whether ‘it` l
amounts to a stipulation for liberty to do a certain act on the pay-
ment of a certain sum." · *‘
Thatthe clause providing for the forfeiture of one week’s salary
for each violation of this contract was in the nature of a penalty, and
designed solely to secure theobservance of article 1, is manifest both
from the general nature of the employment and the requirements of ,
a manager of opera, as well as the express language of this article;
because (1) the stipulation is not for the payment of a certain sum
as liquidated damages, but only for the forfeiture of a week’s salary;
(2) it gives an option to the plaintiff, instead of such forfeiture, to
annul the engagement; (3) it declares that such forfeiture shall not
disbar the plaintiff from enforcing the fulfillment 0f_ this contract in .
such a manner as he shall think nt, 11, e., by any available legal or ‘
equitable remedy. As the remedy by injunction is one of the reme- _
dies available, this language is equivalent to an express declaration
that the provision for the forfeiture of a week’s salary for each viola-
tion shall not affect his right to a remedy by injunction. This last
stipulation would not, indeed, influence the court, provided it was
clear that the damages were intended to be liquidated at a specific
sum, for which the defendant was to have the option of singing at
any other theater. But these several clauses taken together show
conclusively that no such thing was intended, and that the sole object
was to secure the specific observance of the contract that the defend-