Muldoon v. Lynch

Myrick, J. The question involved in this appeal is, whether a sum named in a contract as a forfeiture is to be regarded as liquidated damages or as a penalty.

The plaintiffs and defendant executed a written contract, by which the plaintiffs were to furnish and complete certain improvements on the cemetery lot of defendant in a cemetery in San Francisco, viz : grading, brick-work, stone-work, monument, sarcophagus, etc., in which lot the remains of defendant’s deceased husband had been interred. The monument was to be of the best article of hard Ravaccioni Italian marble. The amount to be paid for the whole was $18,788, four installments [538]of $1,725 each, to be paid as the work progressed to the point of being ready for the reception of the monument, and the balance, $11,887, on the completion of the whole. The contract contained the following clause:

“ All the work, with the exception of monument, to be completed within four months from date of contract, and the balance in twelve months from the date of this contract, under forfeiture of ten dollars per day for each and every day beyond the stated time for completion.”

The monument was procured in Italy, but was delayed nearly two years in reaching the point of destination for the following reason: The monument was of four large blocks of marble; one of them was of the weight of twenty tons. The marble was transported from the quarry to a seaport in Italy for shipment, and was there delayed waiting for a vessel. As one of the plaintiffs testified: “We had to wait until we got a ship; we got the Ottilio ; it was the first vessel that left there for two years for this port. Owing to the size of the blocks, the only way to bring them here was by ships directly from Italy; the largest block would not have been allowed on a railroad car.”

As soon as the marble reached San Francisco it was set up, and everything was according to the contract, without question being made, except as to the matter of time ; that was the only point of controversy.

The plaintiffs claim that the defendant is indebted to them in the sum of $11,887, with interest from the day of the completion of the monument, and that the sum of ten dollars per day, mentioned in the contract as a forfeiture, is a penalty, and not matter of defense or set-off, without proof of actual damage; while defendant claims that the said sum of ten dollars per day is to be taken as liquidated damages; and the same amounting to $7,820, is to be deducted from the sum of $11,887, leaving defendant indebted in the sum of $4,067 only.