Evans v. Moseley

Citations

• 84 Kan. 322
• 114 P. 374
• 1911 Kan. LEXIS 324

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sale—Penalty or Liquidated Damages. A contract for the purchase of about 1000 head of stock cattle for about $40,000, after providing for receiving the cattle on the terms and conditions therein set forth, contained the following: “And failure on the part of the party of the second part shall cause the forfeiture of the advance payment of $3000 this day made. The party of the first part hereby acknowledges receipt from the party of the second part of $3000, as partial or advance payment on said cattle, which sum shall be returned to said party of the second part in the event of the party .of the first part failing to comply with the terms and conditions of this contract, and same shall be paid by said first party in addition to any and all sums which shall become payable to said party of the second part by reason of any shortage in numbers of head of cattle ás hereinafter provided.” Held, to be a stipulation for'a penalty and not for liquidated damages.</p> <p>2. -Presumption that Penalty was Intended. While, ordinarily, parties are bound by the terms of their contracts, unless it appears that they bona fide and actually intended to stipulate for liquidated damages they will be presumed to have intended a penalty only, especially where the language used is susceptible of either construction, or where actual damages might, without serious difficulty, have been estimated in advance, or where the sum named would be recoverable alike for a partial or for a total breach.</p> <p>3. - Measure of Damages — Market Price at Shipping Gen- ' ter. The market price of stock cattle at Garden City is largely governed by the price at Kansas City, less the freight, and in an action to recover damages for failure to purchase and receive such cattle at Garden City it is competent to show their market price at Kansas City at such time, the rule being that the best evidence of which a case is susceptible should be produced.</p> <p>4. Practi