on the bond in question." The Appellate Court by this finding has made no finding contrary to the facts found by the trial court. This court is therefore bound by the facts found by the trial court.

The evidence introduced by plaintiff in error did prove the statement in the affidavit of merits that defendant in error did not execute a bond for performance of the contract at 837 West Twenty-first street, but it did execute a bond for the performance of the contract at 837 West Twelfth street. The contractor's contract by mistake described the property as at 837 West Twenty-first street. Defendant in error was informed of the mistake in the contract by plaintiff in error, who offered to have the contract corrected in that particular, but defendant in error waived this correction by informing him that it was not necessary to have the contract corrected and gave the bond describing the property correctly, therefore there is nothing substantial or meritoriious to this defense. The only question properly presented for our decision is whether or not the contract provided for liquidated damages or a penalty for a breach of the contract, a question of law.

Where a contract provides for liquidated damages at so much per day for delay in the performance of a building contract beyond the time fixed for completing the building, as this contract does, it is not necessary in an action for breach to allege actual damages from such delay, as plaintiff is entitled to rely on the contract to show that damages at the rate stipulated will result from the breach. The burden of proof in such case is on the defendant to show that the contract provided for a penalty and not for liquidated damages, where there is nothing upon the face of the contract that requires the court to make the legal finding that the provision is for a penalty. Such a contract is prima facie evidence that the parties have stipulated and agreed on the actual amount of damages that ought to be recovered for a breach, and in the absence of evidence to the contrary the

damages will be held to be liquidated damages. Selby v. Matson, 137 Iowa, 97; Harper v. Tidholm, 155 Ill. 370.

The question presented in this case for our determination is whether or not the contract by its terms, unaided by any extrinsic evidence, is to be held to provide liquidated damages or a penalty for the delay occasioned in completing the contract on time. Where the damages cannot be calculated in such a contract by market value nor by any precise pecuniary standard, or where, from the peculiar circumstances which the contract contemplates, there must be other uncertainties affecting the practical ascertainment of the amount of actual loss, the law favors any fair adjustment of damages by stipulation. If the contract does not afford any data from which the actual damages can be calculated this circumstance affords a reason for regarding the sum designated in it as liquidated damages. (1 Sutherland on Damages,―4th ed.-sec. 290.) The building in this case, as already disclosed, contained a store and two flats, and the contract was not for building out and out this store and two flats but was a contract for remodeling the same by reason of the widening of Twelfth street. The value of the old building before it was remodeled, or the value of it after this contract was completed, does not appear in the record. We are not authorized to presume that the building, when completed, would only be of the value, or of the near value, of the cost price for remodeling it. The building, when finished, might be worth many thousand dollars more than the contract price. The amount of rent paid or to be paid for this store and the flats does not appear in the record. It is entirely reasonable to suppose, as contended by plaintiff in error, that the parties contemplated that a failure to complete the job on time would result in a loss of renters and of the rents of the building, not only for the actual time the building was delayed in completion but also for some considerable time thereafter. The delay in completion might also subject the owner to liability to his tenant of the store

for enforced suspension or interruption of his business. There are many reasons that might be suggested why it might have been important to the owner to have this building completed on time, to insure him rent and to save him from damages suffered by his tenants, and we think that it was within the province of the parties to determine the amount of compensation to be paid for the delay as stipulated damages.

Another reason for holding the contract in question provided for liquidated damages rather than a penalty is the fact that the damages are fixed at $15 per day and not a lump sum for all the delay. There certainly would never have been any contention between the parties, if the actual delay had not exceeded five or ten days, that the amount fixed was so excessive as to be regarded in law as a penalty rather than as liquidated damages. Of course, the longer the delay the more reason there would be for saying that the damages are excessive and in the nature of a penalty, but the contract cannot be interpreted in this way according to the actual time of the delay. The natural conclusion is that the parties did not contemplate very much, if any, delay in the completion of this work, and in passing upon the question now before us we are to interpret it according to that intention. The weight of authority in this country is to the effect that in contracts for building houses or other structures, wherein a sum certain per day is specified for delay in completion, and there is nothing in the contract that discloses that the sum fixed is grossly excessive when the actual loss is contemplated, the amount so fixed shall be held as liquidated damages in the absence of extraneous facts proved, and particularly where the damages cannot be calculated by market value or by any precise pecuniary standard when the whole contract is considered. (Sutherland on Damages, supra.) In passing upon just such a contract as the one now before us, the Supreme Court of Alabama in the case of Stratton v. Fike, 166 Ala. 203, very

aptly said: “While this may be full large, [$10 per day,] and, of course, could be extended to such length of time as to become grossly excessive, it would not become burdensome without fault or excuse. On the other hand, the amount agreed on for one or a dozen days might be wholly inadequate. The owner may have lost a good renter by that delay, or for any other probable result might suffer damages in excess of the amount agreed upon. The fact that the delay in the particular case was long continued to a time that may be said to be unreasonable or unusual cannot be looked to in construing the contract."

This court has followed the rule that the stipulation for a definite sum per day in contracts such as this is to be regarded as meaning liquidated damages and not as a penalty. (Poppers v. Meagher, 148 Ill. 192; Hennessy v. Metzger, 152 id. 505; Parker-Washington Co. v. City of Chicago, 267 id. 136.) On the other hand, although the damages fixed by the contract may be referred to as liquidated damages, if the provision is in the nature of a penalty and inserted in terrorem to insure the prompt payment of the sum agreed, the damages fixed are to be regarded as a penalty and not as liquidated damages; and in such case the damages usually fixed are a gross sum, and are so manifestly excessive as to clearly appear on the face of the contract to be intended as a penalty and not as a correct or approximately correct estimation of the actual damages. Goodyear Co. v. Selz, Schwab & Co. 157 Ill. 186; Westfall v. Albert, 212 id. 68; Radloff v. Haase, 196 id. 365.

The result of our conclusion is that the Appellate Court erred in holding that the contract provided for a penalty and not for liquidated damages, and in reversing the judgment of the trial court.

The judgment of the Appellate Court is therefore reversed and the judgment of the municipal court is affirmed. Judgment of Appellate Court reversed. Judgment of municipal court affirmed.

(No. 13991.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. ELMER F. ADAMS, Plaintiff in Error.

Opinion filed October 22, 1921-Rehearing denied Dec. 8, 1921.

I. MUNICIPAL CORPORATIONS-officers of village act as agents in signing municipal bonds. The statute authorizes a village to make public improvements and to issue bonds to be executed by such officers as are authorized by ordinance, and the officers executing such bonds act for and on behalf of the municipality in the same relation as a person authorized to act for another as an agent.

2. CRIMINAL LAW-what constitutes forgery at common law. Forgery, at common law, is the false making or material altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability; and it is not necessary to allege that the writing would, if genuine, have created a legal liability, but the essential elements of the crime are the false making of a writing apparently capable of effecting a fraud and the fraudulent intent with which it is made.

3. SAME-indictment for forgery of municipal bond need not show authority of officers of a village to issue bond. An instrument that is void or without apparent legal efficacy on its face or is not shown by proper averment of extrinsic facts to be capable of affecting the rights of another cannot be the subject of forgery, but it is sufficient if it is apparently capable of defrauding, and an indictment charging the forgery of a municipal improvement bond is not defective in failing to show that the officers of the village had authority to sign such bond.

4. SAME-venue in forgery need not be proved beyond reasonable doubt. Venue is a jurisdictional fact but it is not an element of the crime of forgery to be proved beyond a reasonable doubt, and it is sufficient if there is evidence from which it can reasonably be inferred that the crime was committed in the county where the venue is laid in the indictment.

5. SAME-there is no presumption of law that forgery is committed where the forged instrument is disposed of. If there is no other evidence a jury may properly find that a forgery was committed in the county where the forged instrument was disposed of; but there is no such presumption of law, and where there is evidence tending to show that the false writing was prepared in one county and disposed of in another it may be left to the jury to determine where the crime was committed.