I concur with Mr. Justice Rumsby, only deeming it necessary to say a word as to the clause in the contract to the effect that if the Shelby Company should not make deliveries, as therein specified, it would forfeit to the Worcester Company absolutely the full value of the order. It is not clear that the note sued upon is one of the three referred to in this contract. The amount seems to be different, although, possibly, the slight variation may be the result of a clerical error. We have no means of knowing this, however, and there is no allegation directly connecting the affirmative defense with this particular note. But even if it had been so distinctly connected, I think the defense attempted to be pleaded, founded upon this provision of the contract, was substantially a counterclaim, and, consequently, also falls under the criticism made by Justice Rumsby. When the contract speaks of forfeiting absolutely the full value of the order, it refers either to a penalty or liquidated damages. It does not introduce a new rule of law for the particular contract, nor make that condition of things a defense which, but for the contract, would, in an action for the price, have constituted no defense. And, further, the acceptance of the goods was a waiver of the forfeiture. The Worcester Company could, not accept the goods at the time they were delivered, and still claim that the Shelby Company should forfeit absolutely the full value of the order.
I think, therefore, that the affirmative allegation in question constituted" no defense to the present action.
Judgment and order affirmed, with costs.