After a continuance, for advisement, the opinion of the Court was drawn up by
Weston C. J.The persons appointed to explore the land, and ascertain the quantity of pine timber thereon, fit to make merchantable boards, appear to have discharged their duty faithfully, and to the acceptance of the defendant. We do not think, that the absence of one of them one day, the defendant being present and making no objection at the time, can now fairly be urged by him to impair the validity of their report, under the agreement of the parties.
The plaintiff, within ten days after receiving their report, prepared, executed and deposited at the place appointed, a deed of the land he was to convey, in conformity with his covenant. The defendant was at his option to assume, as a part of the consideration the payment of the notes given by the plaintiff, when he purchased the land, and which were secured by mortgage, or the plaintiff was to execute to the defendant an obligation to pay those notes himself, on or before their arriving at maturity. The defendant having made np election upon this point, and having failed altogether to perform the covenants on his part, the execution of such an instrument cannot be regarded as a condition precedent to the plaintiff’s right to maintain this action. Whether to be performed or not, depended upon the election of the defendant, of which he should have given notice to the plaintiff.
The parties bound themselves, each to the other, in th.e sum of five hundred dollars, for the faithful performance of the stipulations by them respectively made. The principal question presented to us is, whether this is a penalty, or in the nature of liquidated damages.
*253In Perkins et al. v. Lyman, 11 Mass. R. 76, the covenants were negative on the part of the defendant; and he bound himself in the “ penal sum” of $8000, and from the whole contact taken together, there was nothing requiring, that it should be held in the nature of damages, agreed by the parties. In Merrill v. Merrill, 15 Mass. R. 488, the plaintiff recovered the full value of the consideration of the note, which w as susceptible of a just estimate. In Stearns v. Barrett, 1 Pick. 443, the parties bad covenanted that neither should use or sell certain machines in the district assigned to the other “ under the forfeiture of a thousand dollars,” for each machine so sold or used, This was decided to be a forfeiture or penalty, because so denominated by the parties ; but principally because it far transcended the estimated value of the whole property in controversy. In Brown v. Bellows, 4 Pick. 179, the parties bound themselves each to the other, “ under the penalty” of one thousand dollars. And in Smith v. Dickerson, 3 B. & P. 630, the defendant entered into a certain engagement, “ under a penalty” of one thousand pounds, and the court held that the word “ penalty” in the agreement, effectually prevented them from considering the sum mentioned as liquidated damages.
The foregoing are the principal cases cited for the defendant, which are all distinguishable from the one before us. The word penal, penalty, forfeit or forfeiture, is not to be found in the instrument under consideration. Nor does it afford any data, from which the actual damage, either party might sustain from the failure of the other, can he calculated. This want of any other measure of damages, than that fixed by the parties, is one of the reasons why they have been regarded as liquidated. Fletcher v. Dyche, 2 T. R. 34. And Dane is of opinion, that they should be so held, “ whenever it is the best rule in the case, from the uncertainty in applying any other, for want of a measure of damages.” 1 Dane, 549, § 18. Wherever the damages have been positively fixed by the parties, they have been held to be liquidated. As in Lowe v. Peers, 4 Burrow, 2225, where the defendant agreed to pay the plaintiff a thousand pounds, if he married any body else. So in certain cases cited for the plaintiff, where a sum has been settled as damages per acre, for ploughing up meadow or pasture land,
*254In Tingley v. Cutler, 1 Conn. 291, the defendant had agreed to purchase an estate of the plaintiff,, and to -pay therefor at the times and in the manner stipulated. There was a further clause on the back of the agreement, signed by the defendant, in these words, “ if Elisha Cutler does not perform, according to the within instrument, he shall pay the sum of one hundred and fifty dollars.” This was held to be, not a penalty, but liquidated damages.
There is great difficulty in extracting from the cases any settled rule, by which the question may be decided. But as the sum stated by the parties is unaccompanied by any terms, indicating that they regarded it as penal, and as the case affords no other measure of damages equally satisfactory, we are of opinion that the jury were properly instructed, that the parties had settled and liquidated their amount. Nor is there any objection to the application of this rule, upon the ground that the amount is extravagant. It bears but a small proportion to the value of the property involved in the contract. Its fulfilment might have been attended with great gain, or it might have occasioned severe loss. It appears to have been fairly made, without any ingredient of fraud or imposition; and by holding the recusant party to the payment of the stipulated damages, we carry into effect what each must be understood to have contemplated.
Judgment on the verdict.