cnaahmsron Fnurr oo. vv Bonn. 21
as the settled and agreed damages; but when some of the breaches
are ascertainable, and some are not, in that case, as it is a penalty
as to some, it is a penalty as to all. Atkyns v. Kinnier, 4 Exch. 776.
This distinction will he found to be fully sustained by the American
authorities. Applied to the case at bar, it would determine in favor
of the plaintiffs right to recover.
In Suth. Dam. 512, it is stated that when the damages are uncer-
tain or difficult of proof, and the result is not manifestly at variance
with the principle of just compensation, the sum is held liquidated.
But it would be manifestly at variance with the principle of just
compensation, when there are many stipulations, some trifling and
some grave, some ascertainable in damages and some not, to hold
that it was intended that a large sum should be forfeited for any
breach.
In Swift v. Crow, 17 Ga. 609, it is held where there is a cove-
nant to perform several things or pay the·sum specified, andthe claim
may extendto the breach of any stipulation, in such case, it seems
to be well settledthat the sum specined should be in the nature of a
penalty. . A ~
Four text writers of recognized usefulness, if not authority, sus-
tain this proposition. In Suth. Dam. 424, after reviewing an array
of authority, the author concludes: _
"This is believed now to be the doctrine generally held. If a gross sum
is stipulated to be paid for any failure to fulfill an agreement consisting of
several parts, and requiring several things to be done or omitted, it is -a pen-
.alty."
Wood’s Mayne, Dam. 209, is identical in substance.
2 Sedg. Dam. 250, and note, discussing Kemble v. Fawen, the au-
thor states:
"A distinguishing mark which the court seems to have had in mind in de-
ciding the case was that there were stipulations of different degrees of im-
portance, some trivial in character, all secured by one large sum. And the rule
generally deduced from the case by subsequent decisions, and applied in prac-
tice, is that a sum fixed as security for the performance of a contract contain-
· ing a number of stipulations of widely different degrees of importance,
breaches of some of which are to be capable of accurate valuation, is to be
regarded as a penalty. "
See, also, Field, Dam. 137-154. A
An exceedingly clear exposition of this doctrine is found in the Cir-
cuit Court Reports of Mr. Justice Woons, (Taylor v. Steamer Mar-
cella, 1 Woods, 302,) and is of great weight and force of authority.
The court has examined with care all of the decisions cited in the
able argument of the counsel for the defendant. They do not aifect
the rule already stated. Without exception they construe contracts
where thereis but one stipulation, or where no damage is ascertain-
able,—in one an agreement to procure an assignment of a mortgage,
in another not to run a stage, another not to practice as surgeon or
apothecary, again not to keep at victualing-house, and several. not