Trower v. Elder

Citations

• 77 Ill. 452

Syllabus

<p>1. Penalty—liquidated damages. Where there are several covenants or stipulations in an agreement, the damages for the non-performance of some of which are readily ascertainable by a jury, and the damages for the non-performance of the others are not measurable by any exact pecuniary standard, and a sum is named as damages for a breach of any of the covenants or stipulations, such sum is merely a penalty to secure the performance of the entire contract, and not liquidated damages, to be recovered for the breach of a single stipulation.</p> <p>2. Contracts—recitals or preamble prefixed to—effect of. The recitals or preamble prefixed to an agreement, do not, of themselves, have any obligatory force; but they may be referred to, in the operative part of the instrument, in such way as to show it was designed they should form a part, of it.</p> <p>8. Same—construction of. A and B entered into a contract as follows: Whereas, A has this day sold all his business, interest, influence and patronage in the banking business, and also his bank safe, together with all the fixtures pertaining to the business of banking, at M, etc., and he also agrees not to engage in the banking business in said M, for which franchises, benefits and privileges, B pays to A the sum of $1250, and said A, on his non-compliance with the foregoing recited engagements, forfeits three-fold t-lie amount paid to him by B, as damages for such non-compliance: Held, that the bank safe, fixtures, etc., were sold in connection with the banking business, interest, patronage, etc., and that the undertaking by A not to engage in the banking business was a part of the sume contract, and that, the safe and' fixtures formed part of the consideration for which the $1250 were paid.</p>