20 FEDERAL nmronrmn.
language. On the general question, however, we find, not only diem
opposed to diem, but decisions opposed to decisions.
It will be observed that there are a number of covenants in the
contract under consideration. Stipulation is had as to delivery of
goods, and the place is fixed. The quantity is specihed from each
cargo in November and December, 1884, and a different quantity for
March and April,1885. The price to be paid is named, and the time
of payment. The defendant is not to import, or cause to be im-
ported, or to ship to Charleston, except to plaintins, any such mer-
chandise. The plaintiffs stipulate that they will not sell to any other
person in Savannah, except to Beedy. The defendant is to have the
privilege of inspecting the fruit in Charleston. For the faithful per-
formance of the agreement, embracing all these stipulations, the par-
ties each bind themselves, one to the other, in the penal sum of $1,000.
The Code of Georgia (paragraph 3, § 2757) affords a lucid state-
ment of a cardinal principle of construction of contracts:
"The construction which will uphold a contract in whole or in part is to
be preferred, and the whole contract should be looked to in arriving at the
construction of any part."
It follows that we cannot, from the consideration of questions aris-
ing from clauses of greater importance, eliminate the legal conse-
quences flowing from the presence of stipulations of minor impor-
tance. Now, there is a numerous class of cases which show that
where there are a number of things to be done, and one large sum is
to be paid in respect of the non-performance of various matters of dif-
ferent degrees 0f importance, then the court will construe the sum, if
it can do so, as a penalty, and not as liquidated damages. Wallis v.
Smith, 21 Ch. Div. 250.
In the leading case of Kemblc v. Farren, 6 Bing. 141, Chief Justice
Tnvoan, in giving the opinion of the full court, while stating and
holding the proposition insisted upon by defendants counsel here,-
viz., that if the claim be limited to breaches which were of an uncer-
tain nature and amount, it would have had the effect to ascertain
and liquidate the damages,-goes on to say:
"If, therefore, on the one hand, the plaintiff had neglected to make a sin-
gle payment of £3 6s. Sd. a day, or on the other hand, the defendant had re-
fused to conform to any usual regulation of the theatre, however minute or
unimportant, it must have been contended that the clause in question in either
, case would have given the stipulated damages of £1,000. But that a very
large sum should become immediately payable in consequence of the non-pay-
ment of a very small sum, and that the former should not be considered as
a penalty, appears to be a contradiction in terms; the case being precisely that
in which courts of equity have always relieved, and against which courts of
law have, in modern times, endeavored to relieve, by directing juries to as-
sess the real damages sustained by the breach of the agreement."
It is safe, in view of the apparent conflict, to say that whenthe
damages for a breach of all the stipulations are uncertain in their
nature, and cannot be ascertained, the sum fixed would be regarded