Benjamin Franklin Thrift Stores v. Jared , 192 Wash. 252 ( 1937 )

I concur in the majority view as to the first and second causes of action, but I am not in accord as to the third. As I view it, the forty-five dollars specified in the contract as liquidated damages was intended to be, and in fact was, a penalty.

In 1 Pomeroy's Equity Jurisprudence (4th ed.), § 443, it is said:

"Where an agreement contains provisions for the performance or non-performance of several acts of different degrees of importance, and then a certain sum is stipulated to be paid upon a violation of any or of all such provisions, and the sum will be in some instances too large and in others too small a compensation for the injury thereby occasioned, that sum is to be treated as a penalty, and not as liquidated damages. This rule has been laid down in a somewhat different form, as follows: Where the agreement contains provisions for the performance or non-performance of acts which are not measurable by any exact pecuniary standard, and also of one or more other acts in respect of which the damages are easily ascertainable by a jury, and a certain sum is stipulated to be paid upon a violation of any or of all these provisions, such sum must be taken to be a penalty."

That same paragraph appeared in an earlier edition of the same work and was approved by this court in Everett Land Co. v.Maney, 16 Wash. 552, 48 P. 243. In my opinion, the specifications of the contract in this case bring it within that rule.

There became due, under the terms of the contract, ninety-five dollars on the first day of each month, and it can hardly be thought that the parties intended that the forty-five dollars should operate as liquidated damages for the sum of ninety-five dollars.

In addition to this, I do not believe that the appellant should be penalized because it did not at once, when there was a default, take advantage of the forfeiture provision in the contract. To so penalize the appellant, it seems to me, would be invoking a very harsh rule.

I therefore concur with the majority as to the first and second causes of action and dissent as to the third.

STEINERT, C.J., BEALS, and ROBINSON, JJ., concur with MAIN, J.