Greenblatt v. McCall & Co.

Citations

• 67 Fla. 165
• 64 So. 748

Syllabus

<p>1. Whether the amount mentioned in a contract to be paid upon a breach thereof is to be considered as liquidated damages, or as a penalty merely, is a question of law for the court to determine from the nature of the contract, the terms and purpose of the whole instrument, the natural and ordinary consequences of a breach, and the peculiar circumstances attending each case as it arises.</p> <p>2. The mere denomination of the sum to be paid as “liquidated damages” is not conclusive as to its real character and- legal effect. When the agreement is to pay the same large sum for a partial as for a complete breach, the sum will be regarded as a penalty.</p> <p>3. When an amount agreed upon as stipulated damages for the breach of a contract may easily be excessive with reference to the terms, nature and purpose of the contract, making it a matter held in terrorem over either party, it may be helfl a penalty, even though it be specifically designated as liquidated damages.</p> <p>4. Where a fixed sum is named to secure the performance of a contract containing stipulations of widely differing importance, for any of which the stipulated sum is an excessive compensation, the designated sum may be regarded as a penalty.</p> <p>5. When a stipulated amount agreed to be paid for the breach of a contract is in law a penalty, the plaintiff must, among other essentials, allege and prove the damage actually resulting from the breach, and not merely claim the specific sum fixed in the contract.</p> <p>C. An agreement that for a breach of “any of the terms or conditions” of a contract for the sale of goods, the other party “may recover and receive as liquidated damages and not as a penalty, a sum equal to two-thirds of the agreed charge for all goods the contract provides shall be delivered during the remaining term of the contract,” is held under the peculiar circumstances of this case to warranj; the court in enforcing the agreement as for a penalty and not for liquidated damages,