concurring.
I concur in the majority opinion, but only upon the ground that we are concluded by numerous former decisions of this court upon kindred questions. I have always questioned the power of the legislature arbitrarily to *618determine that one party to a civil contract shall, in the event of a failure on his part to perform- some condition thereof, pay to the other party damages which such other party has not sustained. To my mind the true and only just measure in all such cases is actual damage. But, in order to hold the laAV under consideration in this case invalid, Ave Avould be compelled to overrule a number of former decisions of this court. This a court of last resort should never do, except in extreme cases. I knoAV of nothing more conducive to the Avell-being of a state than a settled state of the law.