In Yenner v. Hammond, 36 Wis., 277, cited in the opinion of the court in this case, it is said that the court would be as reluctant to give a covenant effect to convert damages liquidated by law into a penalty, as to give a covenant effect to convert a penalty into liquidated damages. Such a reluctance constrains me to dissent from the judgment *230of my brethren, iri tbis case, that tbe sum provided to be paid, in tbe condition of tbe bond, at tbe option of tbe obligee, upon tbe obligor’s failure to pay tbe annuity, is liquidated damages and not a penalty. I am not disposed to discuss tbe question at large, but only to state briefly tbe grounds on wbicb I consider tbe sum in tbe nature of a penalty.
Professor Parsons gives a very satisfactory statement of tbe principle on wbicb I rest my opinion. SpeaMng of tbe distinction between penalties and liquidated damages, be says: “ Among tbe principles wbicb bave been found useful in determining tbis question, perhaps tbe most important and influential are these: Tbe sum agreed upon will be treated as a penalty, unless, first, it is payable for an injury of uncertain amount and extent; and, second, unless it be payable for one breach of contract, or, if for many, unless tbe damages to arise from each of them are of uncertain amount.” 3 Parsons on Con., 159.
Tbe first of these rules applies to cases where tbe law gives a fixed rule of computing damages. In such cases, parties are not at liberty to set aside tbe rule of law, and to substitute a rule of their own, “to cloak oppression.” Sedg. on Dam., 421. And, on tbis principle, I am unable to regard tbe fixed sum here as other than a penalty.
Tbe condition of tbe bond is to pay tbe amount of interest on tbe sum certain to tbe obligee, annually after tbe death of her husband, for her life; failing to pay it any year, then, at her option, to pay tbe sum certain itself, with arrearages of interest. It is of course perfectly obvious that tbe annuity for life of tbe interest is of less value than tbe principal sum on wbicb tbe interest is computed. It is also as obvious that tbe annuity was of wholly uncertain value when tbe bond was given, because it was to run only from a future uncertainty. It is also as obvious that tbe value of tbe annuity, when default should be made in its payment, would vary materially according to tbe time of default. And yet tbe condition of tbe bond *231fixes one srim certain, irrespective of all these uncertainties and contingencies and differences, for damages upon failure to pay the annuity whensoever the annuity might begin to run, or whensoever the default might happen; and that sum greater than the value of the annuity could ever he. It is quite apparent that the sum fixed to he paid upon default was not intended to hear, as it does not hear, any proportion to the actual damages to the obligee by the obligor’s failure to keep his agreement. It looks very like fixing the value of the fee for failure at any time to pay rent under a lease for life. It seems to me probable that the fixed sum was one-third of the ascertained value of the land conveyed, the interest on which while she should survive her husband wpuld be precisely the obligee’s right as doweress; and that the penalty on default is to substitute in effect a fee in one-third of the land for a life estate. The sum fixed appears to me almost as clearly a penalty as the penalty of the bond itself.
Whether there are tables by which the court below could satisfactorily ascertain the value of the annuity, I do not stop to consider. It is a presumption, in the absence of all proof, that the annuitant could purchase the same annuity elsewhere, at reasonably certain market rates. And the sum which would purchase for her the same annuity from some safe public company or from some private party securing it by mortgage, was the precise measure of her damages by the ob-ligor’s failure to pay it. Id certum est quod, certum reddi ■potest. The damages of the annuitant cannot be said to be uncertain. And, if there had been no such stipulation in the bond, and a jury had assessed her damages at the fixed sum, I do not see how a court could avoid setting the verdict aside as excessive. See Pierce v. Jung, 10 Wis., 30; Fitzpatrick v. Cottingham, 14 id., 219.
By the Gowrt. — Judgment affirmed.