We are of the opinion that the amount specified in the contract to be paid in case of its breach was liquidated damages, and not a penalty. Nilson v. Jonesboro, 57 Ark. 168. The ruling of the court on the instruction given and the requests refused was correct. Even if time was not of the essence of the contract so far as the building of the depot house was concerned, still the appellee would be entitled to recover the amount stipulated here. For appellant not only violated its contract in failing to erect the depot building in time, but it also “failed to transact its business usually transacted in its depot for the town of Barfield,” at the depot after it erected same on appellee’s land. A very large per cent, of the appellant’s railroad business usually transacted at its depot was done at another depot, far removed from the depot contemplated by the contract. The presumption, until the contrary be proved, is that this condition will continue. There is no proof or even intimation in the record that this condition of affairs will not continue.
Appellee was clearly entitled to the damages stipulated for this breach.' It was of a kind uncertain of ascertainment, and difficult to prove. See Westbay v. Terry, ante p. 144, and authorities there cited. Also Sun Printing and Publishing Association v. Moore, 183 U. S. 642; United States v. Bethlehem Steel Co., 27 Sup. Ct. Rep. 450.
The allegations of the complaint and answer are sufficient to raise this issue. But, if not, the proof was directed to it without objection.
Judgment affirmed.