Upon the trial, the defendants resisted the plaintiff’s claim, on five grounds, viz.
1. That the plaintiff showed no other title than an unrecorded deed from his immediate grantor.
2. That the plaintiff proved no consideration for the defendant’s promise.
3. That there was a material variance between the declaration and the testimony in the description of the notes to be taken up by the defendant.
*2954. That the action was premature, as the defendant was not bound to fulfil said contract, until the 1 si day of April, 1826.
5. That the damages were unliquidated, and as none were proved, none could be recovered.
The court charged the jury in favour of the plaintiff, and they returned a verdict accordingly
1. An unrecorded deed from the plaintiff’s grantor is good between the parties, and would be sufficient for the plaintiff in an action of ejectment against a wrong-doer; as a valid deed, accompanied by possession, is prima facie evidence of title ; and it is unnecessary for the plaintiff, in the first instance, to trace back his title to the origin of titles. 1 Sw. Dig. 507.
2. A sufficient consideration for the defendant’s promise is alleged in the first count. The contract is mutual and promise for promise. 1 Pow. on Contr. 357. There seems not to have been any direct proof of an express consideration. But one is strongly implied. In the first count, the plaintiff avers, that at the request of the defendant, he agreed to sell, and in consideration thereof, the defendant agreed to buy and pay-In the second count, the plaintiff avers, that the defendant agreed to buy and the plaintiff to sell, and recites the written evidence of their agreement; and the evidence on this point was submitted to the jury. But, says Powell, it is not necessary that in contracts or agreements, the consideration should be expressed, it being sufficient if it can be collected out of them from circumstances. Pow. on Contr. 368
3. The suggestion of a variance between the declaration and proof, respecting the notes to be taken up by the defendant, is unfounded, as it no where appears that said notes were on interest.
4. The defendant’s contract was broken, when he refused to accept the deed, take up and deliver to the plaintiff his notes to Jonathan Cutler, and give security to fulfil his contract.
5. This objection presents the principal question in this case. Is the debt demanded a p nalty, or liquidated damages ? Where it is agreed, that if a party do or omit something, which may be injurious to another, a sum shall be paid, this sum may be considered liquidated damages, in all cases where the d mages are uncertain and depend on the discretion of the jury. In such cases, the parties may stipulate for the consequences of the breach of contract. 1 Sw. Dig. 680. 1 H. *296Bla. 232. As where a man agreed with a woman not to marry any other, and if he did, to pay her £1000 ; this was holden to be liquidated damages. Lowe v. Peers, 4 Burr. 2225. So where two persons agreed to perform certain work in a limited time, or pay £10 a week, for such time as it should remain unfinished, Butter, J. said : “ This is as strong a case of liquidated damages, as can possibly exist and the court decided accordingly. Fletcher v. Dyche, 2 Term Rep. 32.
The decision below was correct; and I do not advise a new trial.
Lanman and Daggett, Js. were of the same opinion.