Goldman & Masur v. Goldman

Citations

• 51 La. Ann. 761
• 25 So. 555
• 1899 La. LEXIS 468

Syllabus

<p>Syllabus.</p> <p>T. A contract by a vendor of a' mercantile business and good will not to engage in a similar business in a specified place for three years, and stipulating for the payment by the obligor of a certain sum to the obligee, in the event of a violation of the agreement, provides for “liquidated damages” and not for a penalty.</p> <p>2. It will not do to apply to the results of a violation of an agreement “not to do” the rules applicable to a violation of an obligation “to do.” There is an entire breach of an obligation “not to do” the moment the obligor does what he has covenanted “not to do,” and the obligee is entitled to sue the obligor at once for the breach; he is not forced to wait until the end of the term fixed as that during which the obligor had covenanted not to engage in business, in order to ascertain (even if he could do so) the actual damage to result from the obligor's action.</p> <p>3. An amount stipulated to be paid by way of “liquidated damages” is sub ject to reduction, under certain circumstances, no less than is that stipulated to be paid as a “penalty.”</p> <p>In either class of eases when reduction is permissible, and the obligee sues for the whole amount upon the instrument evidencing the agreement, the onus is upon the party claiming a reduction to establish the extent of the same.</p> <p>The obligee is entitled to rest upon the amount primarily agreed upon as that due, and is not called on to make extrinsic affirmative proof of his damages.</p> <p>In the absence of counter proof, he is entitled to judgment upon establishing the contract and showing its violation.</p> <p>4. The mere length of time during which defendant may have observed, or may have violated his obligation not to engage in business for a certain period, furnishes no basis upon which to estimate a reduction either of a' penalty or of liquidated damages.</p> <p>On Rehearing.</p> <p>1. Questions open. Issues between parties in another suit had not been settled