dissenting.— I dissent because the opinion seems to me to be contrary to the well-settled rules respecting penalties and liquidated damages, and because its tendency will be to subject debtors to hard and excessive exactions under the name of attorney’s fees.
It will be observed that the opinion is grounded upon the construction of the contract, and holds that the sum stipulated to be paid is liquidated damages. If this is correct, then the same construction must follow if the sum stipulated was two, three, five or ten times as great. And it requires no prophet to foretell that, under such a construction, the exactions for attorney’s fees, in name, will soon become exorbitant and oppressive.
In my opinion, the sum fixed should be construed as a penalty, and the plaintiff allowed to recover thereunder such sum as he could show to be a reasonable attorney’s fee in the particular case. And this, because, F-vrsb: The rule is universal to construe such fixed sum as a penalty, unless the intent to make it liquidated damages is manifested beyond a reasonable doubt. In this case such intent is not manifested, and the term “ liquidated damages ” is not even used. Second: The sum fixed is to be paid by reason of a default in the payment of a sum of money at a specified time, and in such cases courts never construe the sum fixed as liquidated damages, but always as a penalty. Third: The plaintiff may not lawfully have more than ten per cent for the use of his money, and if the stipulated sum is in excess of a reasonable attorney’s fee, which is all plaintiff can have to pay, he does obtain more than that rate, and, under the foregoing opinion, could successfully violate the law in this respect, for it would be, as held therein, liquidated damages, and not interest or usury. And Finally : Because, if the stipulated sum is construed as a penalty, perfect and complete justice will thereby be meted out to both parties, for that the defendant would have to indemnify the plaintiff for the default by paying him the reasonable attorney’s tee expended in the case, and the plaintiff would be prevented from taking the money of the defendant without an *681equivalent. This, very briefly, is the law and the right as I am able to see them; but I cannot comprehend, as such in truth, either the reason, the law or the justice of the foregoing opinion and its results. The judgment of the court below ought therefore to be affirmed, and not reversed.