St. Louis & San Francisco Railroad v. Gaba

Citations

• 78 Kan. 432
• 97 P. 435
• 1908 Kan. LEXIS 81

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Incompetent Testimony Introduced by One Party —Repetition by the Other' Party. If a party by cross-examination elicits and restores to the record incompetent testimony which, upon his motion, had been stricken out, he is not prejudiced by the repetition of such testimony on redirect ex- . amination.</p> <p>2. Contracts — Liquidated Damages. The extent of a possible future loss to be paid in the event of a breach of contract may be agreed upon in advance, where there is difficulty in determining the extent of the loss and the resulting damages are uncertain. In such a case the amount so fixed, if reasonable, will be allowed when the default occurs.</p> <p>3. - Same. This principle is often applied to contracts for building, and when the sum named is not excessive it is generally held to be liquidated damages and not a penalty.</p> <p>4. - Construction. The use of the words “forfeiture,” “penalty” and “liquidated damages” in such contracts is not controlling, although due weight should be given to such expressions, in connection with other parts of the agreement, the subject-matter, and other facts and circumstances.</p> <p>5. - Transportation — Notice to Carrier of Consequences of Delay — Damages. Where materials for a building had been delivered to a carrier for transportation, which was unreasonably delayed, and the consignor paid to the contractor, who was the consignee, the • amount previously agreed upon as damages for the delay in the completion of such building caused by failure to receive the materials in due time, the carrier will be held liable for the amount so paid, in the absence of evidence of bad faith in making the settlement or that the amount paid was excessive, if properly notified at the time of shipment of the use intended and the consequences of delay.</p>