Suit upon a note, as follows:
“December 31, 1860. ^
^ “Eight days after date, for value received, we, or either of us, promise to pay Isaac Brown the sum of two hundred and sixteen dollars and twenty-seven cents, if paid when due; if not, we agree to forfeit and pay twenty per cent, damages for disappointment; waiving valuation and appraisement laws. “J. B. Maulsby,
“Jacob Clapper.”
The defendant answered, that there was no consideration for the twenty per cent, damages; and that they were usury.
The plaintiff replied in general denial of the answer.
On the trial, the note was all the evidence given. The Court found for the plaintiff, the amount of the note, at six per cent, interest, refusing to allow the twenty per cent, damages.
The question, therefore, is on the prima facie import of the face of the note.
A man may charge legal interest for the use of his money, if he pleases. Hence, he may make its payment conditional; as that if his money is paid him by a given day, no interest will be exacted; but if not, that interest will be exacted. Gully v. Remy, 1 Blackf. 69; Ind. Dig. 529.
Again, a creditor may fix his own time for the payment to him of debts due; hence, he may make the time of falling due conditional; as that if a given installment be paid on a given day, the balance may remain unpaid for a certain further period; but, on the other hand, if such installment shall not be paid on a given day, then the whole debt shall be immediately due. These are legitimate matters of contract within the law of the land. Ausem v. Byrd, 6 Ind. 475.
So, legal interest may be taken in advance. Cole v. Lockhart, 2 Ind. 631; Ind. Dig. 778; Haas v. Flint, 8 Blackf. 67. So, it has been held in Indiana, though the point is ruled the other way in Ohio,' that a creditor may malee it a condition *12that if his debtor suffers himself to be sued for the debt, he shall jxay the attorney’s fee of the creditor, in the suit, as well as the taxable costs of the cause. Billingsley v. Dean, 11 Ind. 331.
Again, where a party covenants to perform certain acts, or a certain act, other than the payment of money, the failure to perform-which may occasion damages, uncertain in amount, and to be estimated by a jury, the parties may agree in advance as to what the damage shall be taken to be, and the agreed amount may be recovered. But in this class of cases, it is always to be considered, and is often a question of great difficulty, whether the sum stipulated is a, penalty, or liquidated damages. ^If the former-, then it does not fix the amount, to be recovered; if the latter, it does. Ind. Dig. p. 391; Carpenter v. Lockhart, 1 Ind 434; Miller v. Elliott, id. 484; Duffy v. Shocky, 11 Ind. 70.
If the note, in the case at bai-, fell within the class of covenants of which we are speaking, it might be well argued ■that the sum stipulated to be forfeited on a failure to perform the act promised, was a penalty, axid not liquidated damages; but the note does xxot fall within the class of coveixants, or px’omises, to which the doctrines of penalty and liquidated damages are applied. Hie note is for the payment of money; and whex-e the payxnent of a sum of xnoney is the act to be done, xio nearer approximation to the damages sustained for its omission, says Gilchrist, J., in Mead v. Wheeler, 13 N. H. Rep. 351, can be arrived at, than the legal rate of interest; and this is the rule of damages the law has fixed for delay in the payment of xnoxiey. 2 Parsons on Cont. 436. This proposition appears to have been first asserted by Lord Loughborough, in Orr v. Churchill, in 1789, a case reported in 1 Henry Blackstone, p. 227, aixd it seems to have been adhered to. Sedgwick on Dam. p. 400. The consequence is, that in contracts for the payment of money, agreements of this kind, to pay damages, amount to no more, at all events, than penalties in bonds.
It would certainly be against public policy; would have the effect to abrogate all laws against usury, and place the weak and embarrassed entirely in the power of the money *13capital of the land, should such a stipulation as that contained in the note sued on be held valid.
James Brown-, for the appellant. J. IL Mettett and E. B. Martinddle, for the appellees.Per Curiam. — The judgment below is affirmed, with costs.