tract are uncertain in their nature, any stipulation which the parties may make ostensibly for the purpose of liquidating the damages should receive favorable consideration.

Where the sum is agreed to be paid for any of several breaches of contract, and the damage resulting from a breach of all of them are uncertain, and there is no fixed rule for measuring them, but the breaches are apparently of various degrees of importance and injury, the cases in this country are somewhat conflicting as to whether the sum should be held to be a penalty or as liquidated damages. "But," as said by Ryan, C. J., in Lyman v. Babcock, 40 Wis. 503, "on principle we are very clear the sum should be held a penalty. For it appears to us it would be as unjust to sanction a recovery for the sum agreed to be paid alike for one trivial breach, or for one important breach, or for breach of the whole contract, as it would be to sanction a recovery equally for damages certain or uncertain in their nature." (And see 1 Parsons on Contracts, 161.) Mr. Sutherland says: "This is believed now to be the doctrine generally held: if a gross sum is stipulated to be paid for any failure to fulfill an agreement consisting of several parts, and requiring several things to be done or omitted, it is a penalty." (1 Sutherland on Damages, 525.) The statement is true, as we have seen, even where the actual damages are uncertain, if it appears that the damages resulting from one of the breaches may be great and from another small, since the inequality is logically cer

tain.

But where, as in the case at bar, the sum is made payable for one breach and for many, for a breach attended with a small loss or a great loss, and the actual damages are easily computed, the inequality is at once seen; the stipulation as to a definite sum is so framed that it cannot possibly be construed to adjust the recompense to actual injury.

The sum mentioned and referred to in the act of the legislature is to be treated as a penalty, and not as liquidated damages.

Can the present case be treated as an action to recover damages for a breach of one or more of the conditions to be performed by the defendant?

At common law, where there was an agreement under seal containing a penalty the plaintiff could bring debt for the same, or covenant, and recover damages for a breach of a covenant. (Martin v. Taylor, 1 Wash. C. C. 1.) But after a judgment in an action of debt, if it appeared that the demand was not for damages liquidated, but was a penalty, the defendant could seek relief in equity. (Perkins v. Lyman, 11 Mass. 76; 61 Am. Dec. 158.) Courts of equity relieved against a penalty upon compensation, but when the covenant was to pay a particular liquidated sum, a court of equity could not make a new covenant for a man. (Low v. Peers, 4 Burr. 2228.)

Courts of law (everywhere) now administer the same equity to relieve from the penalties in other forms of contract as from those in bonds. (1 Sutherland on Damages, 481.) Under our system of pleading, if an amount is stipulated as liquidated damages in a contract, whether under seal or not, the plaintiff should sue for that amount, for such is the contract. And such (aside from the suggestion as to defendant's alternative promise) seems to be the theory of the present action. But where the sum stated. is merely a penalty, a plaintiff must sue for the actual damage sustained, by reason of the breach of the particular condition or conditions he claims to have been broken. The allegation of a breach must be governed by the nature of the contract but it must be distinctly stated. It should be assigned in the words of the contract, or in words co-extensive with the sense and effect of it (McLaughlin v. Hutchins, 3 Ark. 213.) The statement of a penalty in a contract is of very little importance, its only consequence being to limit

a recovery of actual damges, so that no more, perhaps, can be recovered than the sum named in the penalty. In cases of penalty the penalty is not a debt; the recital of a contract containing the penalty is not the equivalent of an averment of damages caused by a breach of a condition of the contract, nor is a prayer for judgment for the penal sum an averment that the plaintiff has suffered damages in that sum by reason of the breach. It follows that each breach of a condition on the part of the defendants relied on should have been specifically assigned, and the damage sustained as the result of such breach should have been alleged.

It

The complaint avers that between the fifth day of May, 1864, and the 1st of January, 1883, there were transported numerous public messengers, etc. So far no breach. further alleges that between said dates, on occasions not specified by date or otherwise identified or described, the defendant exacted fares (if that is alleged) of "numerous public messengers of the state, and of various counties and cities and counties," no one of such messengers being named, or his official character or agency given, and exacted fares for numerous convicts and lunatics, not named, for transportation upon portions of defendant's railroad,-not described; further, that defendant charged and collected freights (assuming so much to be averred) for the transportation of "various" materials for the state capitol, and for "various articles" for exhibition at the state fairs,not specifying any of such materials or articles, or its point of shipment, or by whom shipped nor stating that any of such articles was in fact exhibited at a state fair.

If the complaint in these respects were sufficient, the plaintiffs would be at liberty at the trial to prove any instance in which, during a period of more than eighteen years, or at least, within the statutory period of limitation, the defendant had collected fare for the transpor tion of any public messenger, convict, or lunatic, or for

any article "intended" for exhibition at a state fair. The code provides for no "bill of particulars" in such case, nor was defendant bound to move that plaintiffs make their complaint more specific. The complaint does not inform the defendant that the plaintiffs will rely upon any particular omission or refusal, or omissions or refusals, to carry free, indicating it or them by any description which could enable the defendant to prepare to meet the case which night be made by plaintiffs at the trial. Nor is there any averment that the defendant has refused to carry all and every public messenger, etc.

We think the averments referred to are insufficient as an assignment or assignments of breaches of conditions. Beyond question they are "uncertain."

With respect to the land described in the statute, the defendant was to convey it to the state within ninety days after receiving a patent from the United States therefor. The complaint contains no averment that the defendant has received a patent for the land.

may

Though it avers no breach of the literal contract, does it set forth facts showing a substantial breach within the purpose and intent of the supposed contract? The complaint avers that the defendant has been the owner of the land since the passage of the act of the legislature. It be argued that since it is the manifest purpose of the act and agreement that the state shall receive a good title from the defendant, it was the duty of defendant to convey the title which it had as "owner." But whatever may be the meaning of the averment last referred to, that it means that the legal title has been in the defendant is made uncertain by the language which immediately follows it, and is directly connected therewith. "It has been within the ability and power of the defendant at all times to apply for, accept, and receive a patent from the United States." This last is not an averment that the defendant has been in a position to demand, or could put itself in a position to demand, a patent. It may be that, without

fault of the defendant, its application for a patent would have been fruitless; the plaintiffs do not allege that it would have been effectual. Nor is there an allegation that the plaintiffs have suffered damage by reason of the failure of the defendant to convey to the state, either in the amount paid out by it for interest or in any sum. As we have seen,

the defendant would not have been indebted to the state in the amount paid by the latter for interest, upon failure to secure a patent or to convey the land. The doctrine of nominal damages may sometimes be resorted to where there is a failure of proof, not where there is a failure of aver

ment.

The attempted statement of a breach of a condition to convey the land within ninety days after receiving a patent therefor is ambiguous and uncertain.

It is unnecessary to decide whether, if the complaint had not been subject to demurrer in other respects, the general averment of performance of all the conditions mentioned in the act of the legislature would be sufficient under section 457 of the Code of Civil Procedure. It may, however, be proper to say here, that the provision in the statute that the defendant, "when required," shall transport free of charge, imposes on the state, or those made agents of the state, a special request or demand in each case that the person or article be carried free. It has been insisted the words of the statute are not the equivalent of “when required," or "demanded"; that they only mean when "necessary," when it is for the public interest, or, in a larger sense, the public convenience. But the scope and purpose of the act being considered, it could not have been contemplated that the defendant should become liable in case its officers or agents should charge a fare or freight, in ignorance of and without any notice that the man or article was of a class mentioned in the statute. So to hold would be unreasonable in itself, as it might set a trap for defendant, and would make its liability depend on an event not in the contemplation of the law-makers.