OPINION ON THE RE-HEARING OF THIS CAUSE.
Bullard, J.,delivered the opinion of the court.
The court have maturely considered the question pre-” sen ted on the re-hearing of this case, to wit: whether the plaintiff be entitled to recover both the sum paid in advance as part of the hire of the schooner, and the penalty of one thousand dollars stipulated for damages in case of non performance of the contract.
A penal clause in a contract fixing the amount of damages in case of its nonperformance by cither party is reciprocal, and must be enforced on this principle and nothing more or less than the penalty fixed can be recovered. But where a penal clause in a coutract fixes the amount of damages an case" of non-performance by cither party, and there i* a part performance by one of them, the court may modify the penalty accordingly.In the absence of proof as to the law of NeW-York, where the contract was made, we are bound to take our own laws as the rule of decision.
The advance of one half the hire was a part of the contract. It could not therefore he recovered back eo nomine without a recision of the contract. The penal clause was intended to fix the amount of damages to be recovered in case of non-execution of its stipulations, and nothing more nor less could be recovered, except that the court is authorised in cases of partial execution to modify the penalty. La. Code Ar. 2123.
The penal clause of this contract is reciprocal, the parties mutually bind themselves to each other in the penal sum of one thousand dollars. Suppose the plaintiff had violated the contract on his part by refusing to pay the three hundred and fifty dollars in advance, would the owners have been entitled to recover that sum and the penalty besides? Surely not: because that would have been to enforce performance of the contract and to recover the penalty at the same time. We cannot suppose any case in which the defendant would he entitled to recover more than a thousand dollars. If on arrival at the port of destination the plaintifif had refused to pay the remaining part of the hire, and the owners had sued on the penal clause, the plaintiff would have shown a partial performance and entitled himself to a modification of the penalty, according to the article of the Code above cited, and perhaps would have been bound to pay only the balance of the hire with legal interest, as his part of the contract consisted purely in the payment of money. If we permit the plaintiff now to recover thirteen hundred and fifty dollars we destroy the reciprocity of the contract; and in effect permit him to cumulate an action to recover back what was paid on a contract, upon the failure of the consideration which is in effect, a cancelling of the contract, with an action for damages for its non-execution. But it is contended that the redhibitory action is an example of the contrary rule; that when the vendor knew of the vices of the thing, the *722vendee is entitled not only to a rescisión of the sale, hut to damages. That proceeds on the ground of a fraud having been committed, and the exception itself proves the general rule.
So where ono party advances half the sum stipulated in the performance of a contract, which has a penal clause of one thousand dollars in case of failure, and the other party fails to complete liis part, the former cannot recover hack the sum advanced and the penalty too; lie can only recover the latter sum.Upon the whole we are satisfied that our former judgment was erroneous in this particular.
It is therefore ordered that the judgment heretofore rendered he set aside, and it is further adjudged and decreed that the judgment of the Parish Court he reversed and annulled; that the Plaintiff recover of the defendants one thousand dollars, with interest at five per cent, from judicial demand with costs in the Parish Court, the costs of the appeal to be borne by the plaintiff and appellee.