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:
"I do certify, that I have bought of William Graham "17,344 76/100 dollars, six per cents of the United States, to be "delivered to me on the 1st of July next, on my paying to "him, on or before transferring the same, the sum of 22,318 49/100 "dollars in specie. And for the faithful performance of the "above agreement, I bind myself, my heirs, and executors, in "the sum of 1000 l. lawful money of Pennsylvania, to be paid to "said Graham, or his order, in case the same is not fully complied "with by me. Philadelphia, 17th January 1792."
On the trial of the cause, a verdict was given, in favour of the plaintiff, for 1798 l. 17 s. 7 d., subject to the opinion of the Court, on the question, whether the plaintiff could recover more than 1000 l. in an action upon this agreement?
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.