CHARLESTON euurr co. v. soma. 19
bunch for bananas, and $30 per 1,000 for cocoas, each shipment to
be paid for in 30 days. The defendant contracted not to import,
nor cause to be imported, nor be interested in, nor associated with,
any other parties in the importation of bananas or cocoas from No-
vember 1, 1884, to May 1, 1885, and should any cargoes of fruit ar-
rive in Savannah during the specified period he agrees not to ship on
commission to Charleston, nor to permit others so to ship, if in his
power to prevent it, any portion of such cargo to any other person
than the plaintiffs. The contract contains two clauses from which
springs the litigation in this court. They are as follows:
"The said party of the iirst part do hereby agree and bind themselves not
to sell any other party or parties any bananas and cocoa-n uts. during the ex-
istence of this contract, in the city of Savannah, Georgia, except Joseph B.
Reedy."
And this: `
"For the faithful performance of this contract we do each bind ourselves,
one to the other, in the penal sum of $1,0003*
The contract contains no other stipulations of a material character.
It is clear from the evidence that the plaintiff, just before the Christ-
mas holidays, 1884, sold a large quantity of bananas and cocoas to
one Cheatham, a fruit dealer in Savannah. This was within the
period named in the contract. It was a plain violation of its terms,
and the sale was accompanied with such circumstances of disregard
for the provision of the contract, with reference to this stipulation,
as were likely to irritate the defendant. In the mean time the con-
tract had been partly performed, and a large quantity of bananasand
cocoa-nuts had been shipped to the defendant. On this breach, no-
tifying the plaintiffs that he had discovered what he deemed their
breach of contract, the defendant withheld $1,000 due on account of
these shipments to him; and this action is brought by the plaintiifs
to recover that amount. .
The plaintiffs having thus committed a breach of their contract, their
right to recover in this action depends on the determination whether
the sum mentioned is to be held a penalty or liquidated damages.
If this be a penalty, the defendant has no authority to withhold any
portion of the amount due to the plaintiffs. If, on the other hand,
the sum is the liquidated damages for breach of the agreement, fixed
and agreed upon between the parties, that very sum is the ascertained _
damages, and he would be entitled to retain it.
An English judge has said, after an examination of this very ques-
tion: "The only thing I am certain about is that there is a conflict
0fopinion." This much, however, is clearly settled: the question
whether a sum mentioned is a penalty or liquidated damages is one
of construction, looking to the real nature and substance of the agree-
ment. The words "liquidated damages" are not conclusive; nor,
where it is expressly declared a penalty, is the court bound by the