authority, and the signing the two notes referred to was a part of the circumstances from which the fact was to be inferred. Any proof, therefore, showing that the circumstances were unimportant would be material.

If the appellant, when he borrowed the two several sums of money from Mrs. Kinsey and Garrott, had openly avowed what he claimed and testified to at the trial in regard to his authority to sign the names of the two parties to notes, it would certainly have strengthened the evidence upon which he relied to maintain his defense. Upon the other hand, if he avoided making any such disclosure, and made statements and representations showing that he had no such authority, it would have tended very much to weaken it, and been incompatible with his testimony. His conduct, upon the occasion of his borrowing the money, according to the testimony of the parties who transacted the business, we think, tended to contradict what he testified to at the trial, and was properly received in evidence for that purpose. At least, it showed that those transactions were not evidence that he had any authority to sign said parties' names to promissory notes.

Judgment is therefore affirmed.

(4 Utah, 67)

SUPREME COURT OF UTAH.

VENARD and another v. OLD HICKORY MINING Co.

Filed March 21, 1885.

INVESTIGATION OF FINDINGS OF Law and FACT in court below: and upon applying the law to the facts so found, judgment reversed. Twiss, J., dissents.

Appeal from the Second district court.

P. Denny, for appellant.

U. J. Wenner, for intervenors.

EMERSON, J. Venard and McManamon filed a joint complaint to foreclose two separate miner's liens on defendant's property, each lien and cause of action being separately stated as required by statute. It appears that at one time the case was dismissed as to Venard for his non-appearance when it was called for trial. McManamon, however, obtained a judgment and decree of foreclosure on his lien, and an order for the sale of the property was made. Subsequently, Venard obtained an order setting aside the dismissal as to him, and reinstating the case. Subsequent to the filing of their miner's liens, a judgment was obtained by creditors of the respondent, and their property sold on an execution issued thereon. Upon the trial of the case as to Venard, the purchasers at the execution sale were allowed to intervene. The case was tried by the court without a jury, and judgment went against Venard, who prosecutes this appeal.

Among the findings of fact are the following:

"Second. That under and by virtue of a contract made by and between the plaintiff Venard and the defendant, the Old Hickory Mining & Smelting Company, the plaintiff Venard entered into the service of the defendant company, on the fifteenth day of September, 1881, as superintendent, at and for the wages or salary of $150 per month and board, and continued as such superintendent in the service of the defendant until the sixteenth day of December, 1881, at and for the said agreed price and stated allowance for such service of $150 per month, to be paid to him by the defendant, the Old Hickory Mining & Smelting Company, for such service as such superintendent. Third. That the wages and salary of the plaintiff as such superintendent, while in the service and employment of the defendant, the Old Hickory Mining & Smelting Company, amounts to and are the sum of four hundred and fifty-five dollars, no part of which has been paid. Fifth. That on the tenth day of March, 1882, the plaintiff Venard filed in the office of the recorder of Beaver county a notice of his intention to hold a lien upon the Old Hickory lode and mining claim, situated about four miles north of Milford, in Rocky mining district, in the county of Beaver, and territory of Utah, the property of the defendant, the Old Hickory Mining Company. That by virtue of a contract made by and between him, the said Venard, and the Old Hickory Mining & Smelting Company, he was employed by said company as the superintendent of its mine for and during the term of three months and one day, commencing on the fifteenth day of September, and ending on the sixteenth day of December, 1881, at agreed price of one hundred and fifty dollars per

month; and that he claimed and intended to hold a miner's lien upon the Old Hickory lode and mining claim, with all the tenements, hereditaments and appurtenances thereto appertaining, for the sum and amount of his wages as such superintendent of said mine, which amounted to the sum of four hundred and fifty-five dollars. That said notice was recorded by the recorder of Beaver county, in the territory of Utah, in his office, on the tenth day of March, 1882.'

The conclusions of law were as follows:

"(1) That the claim of the plaintiff Venard was and became a lien and charge upon and attached to the Old Hickory lode mine or mining claim, which was the property of the defendant, the Old Hickory Mining & Smelting Company, at that time; (2) that the judgment of B. F. Grant against the Old Hickory Mining & Smelting Company was and became a lien upon the Old Hickory lode mine or mining claim on the twenty-sixth day of March, 1882, subject to the lien of the plaintiff Venard; (24) that the sheriff's deed of June 15, 1883, conveyed to Green and Austin all the title and property of the Old Hickory Mining & Smelting Company in and to the mining property hereinbefore described; (3) that by reason of the judgment decree of foreclosure, and order of sale obtained by the plaintiff McManamon, against the defendants, the Old Hickory Mining & Smelting Company, and the sale of said mining property thereunder, and in pursuance thereof, the plaintiff is not entitled to the judgment or decree prayed for in this action; (4) that William G. Green and Edward Austin are properly made an intervening party in this action, and as such intervening defendants are entitled to a judgment that the plaintiff Thomas Venard take nothing as against them, or either of them, in this action, and that said Venard is not entitled to a decree to enforce his said lien, or to foreclose the same against the said mining property, or to any part thereof, and a judgment for their costs expended by them in the intervening suit; (5) that the plaintiff Venard is not entitled to judgment against the defendant, the Old Hickory Mining & Smelting Company, for his wages, or for a decree as prayed for in the complaint; (6) that the defendant, the Old Hickory Mining & Smelting Company, are entitled to judgment against the plaintiff Venard for its costs in this action."

The conclusions of law are not supported by the findings of fact, but are directly contrary thereto.

The appellant was entitled to a judgment against the respondents for the amount of his wages, which the court finds due and unpaid, and I can perceive no reason why he was not entitled to a decree foreclosing his lien, and for an order of sale as against the intervenors. His lien antedated that of the judgment upon which their right was founded, and he has done nothing to forfeit it, waive or postpone it. It can make no difference with his rights, as against the respondents or intervenors, that his co-plaintiff had obtained a judgment for his claim and a foreclosure of his lien. The record shows that the property will more than satisfy both liens, so that there will be no question about apportioning the proceeds of the sale. The purchasers at the execution sale, who are the intervenors here, must be held to have purchased the property, subject to the prior lien of the appellant. The judgment is reversed, and the case remanded.

Twiss, J., dissents.

(66 Cal. 536)

SUPREME COURT OF CALIFORNIA.

MULDOON and others v. LYNCH.

Filed March 23, 1885.

(No. 8,729.)

CONTRACT-DAMAGES, WHETHER LIQUIDATED OR PENALTY.

Plaintiff contracted with defendant to erect a monument over a grave in a cemetery, agreeing to complete it within 14 months, under forfeiture of $10 for each and every day beyond the stated time for completion. Held, that such forfeiture was a penalty and not liquidated damages, and could not, therefore, be set off against a demand for the contract price.

Department 2. Appeal from the superior court of the city and county of San Francisco.

A. N. Drown, for appellant.

Gunnison & Booth, for respondent.

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, 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 20 tons. The marble was transported from the quarry to a sea-port 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 defendant is indebted to them in the sum of $11,887, with interest from the day of the completion of v.6p,no.6-27

the monument, and that the sum of $10 per day mentioned in the contract as a forfeiture is a penalty, and not matter of defense or setoff without proof of actual damage; while the defendant claims that the said sum of $10 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. There is no doubt that parties to a contract may agree upon the amount which shall constitute the damage for its breach. It is declared in section 3301, Civil Code, that "no damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin;" but section 1671 of the same Code declares that "the parties to contract may agree therein upon an amount which shall be presumed to be the amount of damages sustained by a breach thereof, when, from the nature of the case, it would be impracticable, or extremely difficult, to fix the actual damage." When parties have endeavored to contract with reference to damages,-when they have explicitly declared that a sum named by them shall be taken as stipulated damages,-it may be that such declaration would be taken as conclusive, and that courts would not attempt to relieve the losing party from his unfortunate or ill-advised engagement. But where it appears on the face of the contract that the sum named was intended by the parties to be considered as a penalty,-a spur,-courts will not enforce another construction, especially when the result would be the payment of a sum largely disproportionate to any reasonable idea of actual damage. The contract reads, "under forfeiture of ten dollars per day for each and every day beyond the stated time for completion." The general rule is that damages are and ought to be purely compensatory; they should be commensurate with the injury, neither more nor less. There is nothing in this case to indicate that the defendant has suffered any actual damage which can be measured or compensated by money. It is true, she had the right to contract to have the monument erected in memory of her deceased husband, and to have it at a certain time; and possibly the agreement might have been so drawn that her disappointment should have received adequate compensation; but, referring to the words used by the parties, we are not prepared to say that either had thought of compensation as such. The word "forfeiture" is the equivalent of the word "penalty;" it imports a penalty. Van Buren v. Digges, 11 How. 461; Stearns v. Barrett, 1 Pick. 443; Salters v. Ralph, 15 Abb. Pr. 273.

It has been held that in an agreement to convey land, and on de fault to pay a certain sum of money, or where the contractor agreed to do certain work, with a provision to pay a certain sum for each day's delay beyond the day fixed, or an agreement not to carry on a certain business at a named place, with a promise to pay a sum in case of violation of the agreement, (Streeter v. Rush, 25 Cal. 67,) if it appears that the parties intended the sum named to be considered liquidated damages, courts will not interfere with the contract, even