Where the owner of a gristmill, who also sold grain at retail, agreed with a purchaser of the business not to deal in grain "in any way, form, or manner," within a radius of ten miles of the mill, sales of grain by him within the proscribed territory, as traveling salesman for wholesalers, constitute a breach of the contract. Where a contract provides for the forfeiture of a specific amount of money in the event of its breach, the question whether the sum named is a penalty or liquidated damages depends upon the intention of the parties; and the difficulty in ascertaining the amount of damages in case of a breach is evidence that liquidated damages were intended.
YOUNG, J.
If the intestate sold grain within ten miles of the mill he broke the contract; for selling grain on commission is a form of dealing in grain, if "deal" is given its ordinary meaning. It is improbable that the words "in any way, form, or manner" would have been used if the sole purpose of the parties had been to prevent the intestate from selling grain at retail. These words tend to prove that the intestate was not to engage in any branch of the grain business, either on his own behalf or on behalf of another, and there is nothing to rebut this presumption. Under the rule which is now applied to construe a written agreement, the fact that the agreement is in restraint of trade is immaterial. The issue of intention is one of fact to be determined, like all such questions, not by a rule, but by competent evidence.
Whether the five hundred dollars was intended as a penalty or as liquidated damages depends on the intention of the parties. Hurd v. Dunsmore, 63 N.H. 171. The difficulty in ascertaining the amount of the plaintiff's damage in case the contract is broken tends to prove that it is liquidated damages (Houghton v. Pattee, 58 N.H. 326); and if that was not its purpose, it adds nothing to the agreement.
Plaintiff's exception sustained: defendant's exception overruled.
All concurred.