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PERIT v. WALLIS - 2 U.S. 252 (1796)

U.S. Supreme Court

PERIT v. WALLIS, 2 U.S. 252 (1796)

2 U.S. 252 (Dall.)

Perit, Executrix

Supreme Court of Pennsylvania

September Term, 1796

This was an action of debt, on a bond which was executed upon the 29th of January 1789, by the defendant, to Peletiah Webster, the Testator, in the penal sum of L 5000, with the following condition subjoined: 'Whereas the said Samuel Wallis did, by his deed, duly executed under his hand and seal, bearing even date with these presents, grant, bargain and sell unto the said Peletiah Webster a certain tract of land therein described, containing 12,625 acres, and contracted to make a clear title in fee, under a patent or patents from the State of Pennsylvania, for the same: And whereas patents for the said lands have

Page 2 U.S. 252, 253

not yet been obtained: NOW KNOW YE, that the condition of the above obligation is such, that if the above bounden Samuel Wallis doth, within six months from the date hereof, well and truly obtain from the land office of the State of Pennsylvania aforesaid, good and sufficient patents for all the lands described and conveyed within the deed aforesaid, as reference being thereunto had will appear, and convey or cause them to be paid to the said Peletiah Webster, by good and sufficient deeds and assurances in the law, then the above written obligation to be void, otherwise to be and remain of full force and virtue.'

After Oyer, the defendant pleaded performance of the condition; and the plaintiff replied non-performance, assigning as a breach of the condition, that the defendant did not, within six months after the execution of the bond, obtain patents for the lands, and convey them, or cause them to be conveyed, to the plaintiff. On these pleadings issue was joined, the cause was tried, and a verdict was given in favor of the plaintiff, 'for L 5000 debt, and L 1922 10 damages and costs; subject to the opinion of the Court on the damages, which are given for interest.'

The question before the Court was: Whether the plaintiff was entitled to recover interest upon the L 5000 penalty, from the expiration of the six months allowed for the performance of the contract? And it was argued by Ingersoll and Lewis, for the plaintiff; by Coxe and M. Levy, for the defendant.

For the plaintiff it was insisted, that in every point of view the interest ought to be allowed, and that it was the province of the Jury to allow it by way of damages. And the Counsel illustrated, exemplified, and enforced the principle of their argument, by cases of penalties given under particular statutes; by cases where the penalty is given in a bond for the payment of an additional sum, if the sum mentioned in the condition should not be punctually paid; by cases where the penalty is given as a security for the performance of a collateral act; and by cases where the penalty is considered as the fixed and ascertained damages, mutually agreed upon by the parties themselves; in all which, it was urged, that damages had been carried beyond the penalty; and the following authorities were cited. 2 T. Rep. 388. 9. Bund. 23. Show. Parl. Ca. 15. 16. Bull. N. P. 178. 1 Salk. 206. 1 Vent. 133. 3 Cro. C. 559. 1 Fonbl. Eq. 141. 1 Brown. Ch. 418. 2 Fonblan. 430. 1 Vent. 133. 2 Hawk. P. C. 273. Carth. 230. 3 Lev. 374. If, then, the Jury had a power to give damages at all, the interest was the most reasonable rule that could be adopted to estimate them. 2 Fonbl. Eq. 423. 1 Dom. C. L. 407. And the expiration of the six months was the proper time to compute the damages from, without regard to any demand; for, where a certain [2 U.S. 252, 254]

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