GRAHAM v. BICKHAM, 4 U.S. 149 (1796)
U.S. Supreme Court
GRAHAM v. BICKHAM, 4 U.S. 149 (1796)4 U.S. 149 (Dall.)
Graham
v.
Bickham.
Supreme Court of Pennsylvania.
December Term, 1796
THIS was an action on the case for damages, which were laid at 10,000 l. in the declaration, founded upon the following agreement, signed by the defendant:
On the trial of the cause, a verdict was given, in favour of the plaintiff, for 1798l. 17s. 7d., subject to the opinion of the Court, on the question, whether the plaintiff could recover more than 1000l. in an action upon this agreement?
The case was argued by E. Tilghman and Ingersoll, for the plaintiff, on the position, that unless a certain sum is agreed by the parties to be paid and received, at all events, as the measure of damages, the plaintiff may waive the penalty of the agreement, and proceed for damages according to the actual injury. 4 Burr. 2228. 2 Ark. 371. 1 H. Black. 232. 1 Bl. Rep. 395. 373. 2 Atk. 190.
Lewis and Rawle, for the defendant, insisted, that the contract ought not to be enforced beyond the meaning and understanding of the parties; which was, obviously, to fix a sum, as the extent of the defendant's responsibility, in case of a non-compliance
with his engagement. 16 Vin. Abr. 301. 'Penalty.' pl. 3. 5. 10.
By the COURT:
The substance of the agreement between the parties was, to buy
and sell stock. The penalty was merely superadded as a security for
performance; and not as a sum to be paid and received absolutely in
lieu of performance. The plaintiff is entitled (notwithstanding the
penalty) to recover damages, commensurate with the injury suffered
by a non- performance. The judgment must, therefore, be rendered in
his favour, for the full amount of the verdict.
U.S. Supreme Court
GRAHAM v. BICKHAM, 4 U.S. 149 (1796) 4 U.S. 149 (Dall.) Grahamv.
Bickham. Supreme Court of Pennsylvania. December Term, 1796 THIS was an action on the case for damages, which were laid at 10,000 l. in the declaration, founded upon the following agreement, signed by the defendant: