By the Court. The Defendants all appeared *170in the court below and put in answers which they withdrew before the trial, and submitted the case to the court without a jury. The purport of the answers does not appear, nor is it at all material, as, after they were withdrawn the case stood exactly as if they had not been served. No objection was made by the Defendants to the assessment of the damages on the basis stipulated in the note, and the court very naturally adopted it, not wishing, and not having the right perhaps to interfere with the agreements of parties' unless' at their suggestion.
If the Defendants on after reflection were inclined to ask relief against the penal clause they had inserted in their note, they should have made their application to the court below for a re-assessment of the damages. The court committed no error that can be corrected here under the decision of this court in the case of Babcock & Hollinshead vs. Sanborn & French, 3 Minn. 141.
The judgment must be afflrmed, but without prejudice to an application being made to the court below for the relief sought here. Case remanded.
Chief Justice Emmett dissents from the foregoi/ng opinion.