Upon all the points made in this case, except that which relates to the amount of damages to be recovered, I concur in the opinion of Judge Woodruff. In regard to the rule of damages, I am of the opinion that this case should come under the rules laid down in the case of Dakin v. Williams, 19 Wend. 447, and 22 Wend. 201, viz., that when the damages arising from the breach of the covenants are all of them necessarily uncertain, and no one of them has any certain amount of damage, then the amount fixed by the parties, as liquidated damages, is to be regarded as stipulated *587damages, and not as penalty. Such is the condition of these covenants. There is no one, upon the breach of which any fixed sum is recoverable; and from the peculiar nature of the contract, no sum could be fixed, and I very much doubt whether any evidence could be procured by which any specific amount of damages could be ascertained. The plaintiff made certain advances, which it is conceded do not furnish the rule by which the damages are to be estimated, and the utter uncertainty attending upon the performance of the covenants in California, would render the case a very fit and proper one for the liquidation of the amount by the parties themselves.
It is suggested, that the breach of some of the conditions would be trifling in themselves, and ought not to involve so heavy a punishment. Such an objection might have been, and was made in the case referred to, when the obligor was bound not to aid or assist in the publication of a newspaper, and the breach was advertising in it, which was certainly a very trifling matter.
When, consistently with rules heretofore established, the damages fixed by the parties as liquidated damages can be allowed, I am of the opinion that such rules should be more strictly enforced, and the disposition of the courts to interfere with the contract made by parties on this subject, on account of some peculiar hardship in the case itself, ought not to be encouraged. No layman, on reading this paper, would suppose for a moment that the parties intended anything different from what was written, viz., that a failure to comply with the agreement, made the defendant liable for the whole sum of §500. That such was the intent of the defendant, as well as the plaintiff, I cannot doubt.
Although there were several conditions, yet they were all connected with, and tending to, one object, viz., the procuring gold in California. The refusal to perform any one of them, was such a violation of the agreement as to defeat the main end in view; and although a partial performance might have resulted to some advantage, yet it would not have at all fulfilled the grand object contemplated by the contract, viz., a united *588and faithful performance by the whole company. No one of the cases cited by the defendant, justifies the contrary conclusion. The judgment should be affirmed.
Judgment affirmed.