Upon the application of the rules of construction which the courts have adopted in ascertaining whether a certain sum, agreed to be paid upon a breach of contract, is to be deemed a penalty, or liquidated damages, we are of opinion that this case belongs to the first class. The description of the sum of one hundred dollars as “ mutually agreed upon as liquidated damages,” though entitled to consideration, is not conclusive, and is of less weight when it is inserted only in the formal part of the contract, and may therefore have been written by the scrivener without attracting the particular attention of the parties. This instrument is in the form of a bond, and no other sum is mentioned as a penalty. It contains several distinct stipulations of various importance, to be performed at different times. Most of them are for the payment of fixed sums of money, and some of them are for the payment of semi-annual instalments of interest of thirty dollars each. The value of those stipulations which are not for the payment of money can be readily estimated; for the amount of taxes will be fixed by the assessment, and the premium required for an insurance of one thousand dollars is not difficult to be ascertained. Upon a view of the whole contract, it is not to be inferred that the parties really intended that the whole sum of one hundred dollars should be paid in the event of the breach of any one of several stipulations, many of which were for the payment in money of .ess than a thirl of that sum. Heard v. Bowers, 23 Pick. 455. Lynde v. Thompson, 2 Allen, 460. Horner v. Flinloff, *1349 M. & W. 678. Dimech v. Corlett, 12 Moore P. C. 229, 230 Lampman v. Cochran, 16 N. Y. 275. 2 Greenl. Ev. § 258.
The superior court, in assessing the damages, evidently considered them as having been liquidated by the parties in the contract. Its judgment must therefore be reversed, so far as execution was ordered to issue for the whole amount, and the case be referred to an assessor, unless the parties agree upon the amount for which execution should issue.