This action has been properly compared to a suit brought on a deed. If there had been a seal affixed to the instrument, the real damages sustained might have been recovered in an action of covenant, though they exceeded the penalty.
Here was a contract for the payment and delivery of stock on a certain day, at a stipulated price. It is probable, that neither of the parties had an idea, that the difference in the market price of stock, would have been so great at the time of transfer, as it proved to be in the event but they never could have intended that the penalty of 1000Í. should have been the stated, ascertained damages, in possible cases of failure.
The remedies on both sides on non-performance must be supposed mutual and equal. Suppose then stock had risen three pence in the pound at the time of delivery, and Bickham should ^sustain a loss of 80i. or thereabouts by Graham’s non-performance, would he be allowed to recover the whole 1000Í. by the court % Certainly not. 'By parity of reason therefore, if stock had risen so extravagantly, that 1000Í. would not have been a compensation for his damages, lie-ought not to be restrained by the penalty.
So in the case of the now plaintiff. If his damages had been only 80i., the court would never have given him judgment for 10Q0Í.; and since in the event he has suffered beyond the penalty, the court are constrained to say, that judgment must be entered for' the plaintiff for 1798Í. 12s. 2d. damages.