The only question submitted to us is the sufficiency of a declaration in debt filed by the plaintiff in error.
There are three counts. The first is on a money bond. It is in the usual and approved form and we can not understand why the Circuit Court sustained a demurrer to it.
The second count sets out a bond for $2,000 in haee verba and claims that sum as liquidated damages. It is contended by the plaintiff in error that as the Wallbaum Stone & Mining Company, principal in the bond, was in default on a contract made by it with the plaintiff and was liable to the plaintiff in an action of assumpsit for that reason, and that the furnishing of the stone promptly "was of vital importance to the plaintiff, who was erecting a large public building under contract with the county authorities of a county in Iowa, the circumstances in "which the parties were placed show clearly that it was intended by the parties that incase of another default the defendant company should be liable in the sum of $2,000 as liquidated damages. The only circumstances which we can consider, of course, are those disclosed by the obligation itself as set forth in the declaration. Whether the sum stipulated to be paid upon breach of an agreement is to be taken as liquidated damages, or only as a penalty, will depend upon the intention of the parties as disclosed by the written contract. In the obligation before us it is not recited that the sum to be paid in case of default is to be taken as liquidated damages; nor can such an interpretation be placed upon it after a consideration of the whole tenor and subject of the agreement. As a claim for liquidated damages the count was bad.
The third count sets out the bond in haeo verba, and alleges special damages as the result of a failure on the part of the principal to perform the conditions. That the plaintiff performed his part of the agreement and advanced the $1,000 within a reasonable time after the delivery of the bond, is clearly alleged. Payment within a reasonable time
after the delivery of the bond was all that was required. What was a reasonable time was a question of fact for the jmy-
We do not think the position of defendants in error, that the payment of the entire $1,000 was a condition precedent to the delivery of any stone under the contract, tenable. We gather from the recitals in the bond that the $1,000 was to assist the company in procuring stock; not to purchase the stock. The whole tenor of the instrument shows that it was the intention of the parties that the money should be advanced as needed by the company for that purpose.
In our opinion the count was sufficient.
Reversed and remanded.