The first question arises upon the demurrer, & Pr. 590; Bank of Timmonsville v. Fidelito the declaration. The reference of the de- ty Co. (C. C.) 120 Fed. 315; Armstrong v. fendant in this court to this question is con- Robinson, 5 Gill & J. 412, approved in Neale tained in the following extract from its brief: v. Fowler, 31 Md. 157. In reference to the "There are what purport to be five counts in objection that none of the remaining counts the declaration, but, in reality, there is one in themselves states a cause of action it will count only, and that is the first count. The be sufficient to cite Griswold v. Ins. Co., 3 remaining counts should have been held bad Cow. 97, in which it was said that: "In deon the demurrer which was interposed. The claring upon a contract which is sufficiently first count is complete in itself, but the dam- stated in the first count, it need not be reages recoverable thereunder are in express peated in subsequent counts in the same decterms limited to such as arose for defective laration. It is enough to declare it is the materials and workmanship during the time same as set forth in the first count." As to Lawrence was on the job down to August 11, the second we are informed it was contended 1906. We take it to be clear that the remain- below that it should have negatived matters ing counts are fatally defective, and should of defeasance afterwards set up in some of be tested as though the first count were bad the pleas filed. But the authorities are othon demurrer. Neither count subsequent to erwise. Booth v. Comegys, Minor (Ala.) 210; the first states in itself a cause of action." Mix v. Page, 14 Conn. 329; Mason v. MontThis does not clearly point to any specific gomery, Wright (Ohio) 722, in which it was defects, and the only inference suggested is said that a party relying upon new matter that the contract and bond should have been must himself affirmatively bring it forward set out in each count. The plaintiff's brief, in pleading, and that a demurrer will not inhowever, discusses some grounds taken by the troduce it upon the record; also Romer v. defendant in the court below which will be Conter, 53 Minn. 171, 54 N. W. 1052, where briefly referred to. First, however, we will the rule was applied to a suit on a bond givnotice the plaintiff's contention that this de- en to secure the performance of a building murrer is joint, and not several, and must contract. It was also objected below to the therefore be overruled if there is one good third count that it did not designate with sufcount, as we understand the defendant to con- ficient particularity the 250 days for which cede there is, in the extract from his brief liquidated damages were claimed, and to the above. Such is the undoubted rule of plead- fourth that it did not state the date when ing, but the exact language of this demurrer Lawrence abandoned the contract, and when is: "To the plaintiff's declaration and to notice thereof was given to the defendant. every count thereof." We should hold this to But these we think were matters of evidence. be several, as well as joint, if there were no 1 Poe's Pleading, § 550; Ruby v. State, 55 express authority therefor, but the precise Md. 488. We are told it was contended below question has been decided in Sanford v. Ged- that the fifth count was bad for duplicity, in des, 13 Ill. 329, in an opinion by Judge Ly- that it set forth two distinct causes of action. man Trumbull, one of the most distinguished This, if true, would be ground of demurrer. Judges of that state. The language of that Milske v. Steiner, 103 Md. 250, 63 Atl. 471, 5 demurrer was as follows: "The said several L. R. A. (N. S.) 1105, 115 Am. St. Rep. 354. counts of the said declaration are not suffi- But we think only a single cause of action is cient in law, nor are either of said counts set forth in this count, viz., the failure to comsufficient in law." The court said: "Had plete the work properly within the prescribed separate demurrers been written out to each time. Mr. Chitty on Pleading (volume 1, p. count, it cannot be denied that some of them 251), says, "Several distinct facts may be might have been sustained, and others over- comprised in the same pleading, if the differruled, as the counts, on examination, were ent facts form together but one connected found to be either good or bad. Why then proposition," and this is said to be the rule should not one general demurrer, made sev- in 7 Enc. Pl. & Pr. 238, citing Wolfe v. Beecheral to each of the counts, be treated in the er Mfg. Co., 47 Conn. 233, where it is said same way? We regard it as a commendable "An enumeration of various kinds of damage practice to avoid incumbering the record with resulting from a single act will not render useless papers, and can see no good reason the pleading duplicitous." We do not think why a party should not be permitted to make this count is open to that objection, and we his demurrer several to each count, without are of opinion that the demurrer was properwriting out as many formal separate demur- ly overruled. rers as there are counts in the declaration." But we are of opinion each of the counts in the declaration before us is good. We are informed that it was objected below to the first count that it does not contain the specifications and drawings referred to in the contract. It was not necessary it should contain them. It was not even necessary to set out the contract in hæc verba, or to set out

The defendant's first exception was to the refusal to admit in evidence a report made by Mr. Keyser, an engineer, of an inspection made by him of this building in March, 1907. There was no authentication whatever of this paper. Wigmore, in his work on Evidence (volume 3, § 2130), says: "A writing purporting to be of a certain authorship cannot go to the jury as possibly genuine, merely on the

evidence of the genuineness (or execution) of, essary to refer to certain provisions of the it." In St. Louis Loan Co. v. Yantis, 173 Ill. contract and specifications. Clause 1 of the 321, 50 N. E. 807, where a printed statement contract requires the building to have a of the number of shares of installment stock frontage of 49 feet, 10 inches, conformably to issued was offered in evidence, the court the drawings and specifications thereto ansaid: "In no way authenticated, we are nexed. Clause 2 requires the work to be sataware of no rule of evidence that would just-isfactory to the owners, architects, and buildify its consideration by the court." Moreover, that paper was nothing more than what Mr. Keyser said upon the subject. It was an unsworn statement, and no more admissible than his oral statement to the same effect. Even if supported by a mere voluntary affida-occupied in the work. Clause 10, that in case vit, it would not have been raised above the grade of hearsay. Patterson v. Md. Ins. Co., 3 Har. & J. 71, 5 Am. Dec. 419. There was no error in this ruling.

We will now turn to the prayers, and will character of wall had been provided for the take up first the defendant's twenty-seventh north side as for the other sides of this prayer, which seeks to discharge the surety building, its outer edge would have coincidfrom any liability on the bond on the grounded with the line of the outer edge of the colof a material alteration in the plans and specifications and construction of the concrete work by reason of the alleged change in the location of the north girder. It will be seen that, through some error in preparing the record, or some possible inadvertence in drawing the prayer, its language is very confused and difficult to understand, but we will assume that the jury understood it as presenting the proposition we have stated. The plaintiff specially excepted to this prayer upon the ground that there was no evidence legally sufficient to show that the original contractor moved this girder from the position indicated in the plans and specifications, or that, because of said removal, the plaintiff gained 200 square feet of floor space, or that the cost of said removal was about $200, and that the same was not included in the original contract, plans and specifications. This exception was sustained, and the prayer was refused. There was evidence showing that the architects required Lawrence to change the location of this girder from the center of the columns, where he had begun its construction, to the north side of the columns, and from the position apparently indicated for it by the line drawn through the center of the columns on the drawings, B and C, prepared by the contractor after the execution of the contract and the preparation of the plans, which were annexed to the contract as a part thereof. But this does not tend to show that this was a change of location from its position as determined by the drawings and specifications annexed to the contract, which alone constitute the original and satisfactory source of proof, and we

have the uncontradicted evidence of the ar

chitects that no change was made in these drawings or specifications, nor in the construction provided for by them, and E. L. Walsh, who was the member of the architect's firm especially in charge of, and familiar with, these drawings, testified positively that these drawings did not show any location for this girder. Lawrence, about the time he commenced work, June 18, 1906, or a little before, prepared his own working plans, which were submitted to the building inspector approved by him, and lodged with him, and Lawrence testified that the drawings A, A2, B, C, and D were duplicates of his originals, but there was no proof that they were duplicates or accurate copies, or copies of any sort, of the architects' drawings annexed to the specifications. Moreover, the language of the specifications is, we think, in the absence of other proof, conclusive, as Walsh testifies, that this girder was designed by them to be located on the north side of these columns, and to be flush with their north edge. It is perfectly manifest

umns actually provided for, since otherwise the building would not have had the required frontage of 49 feet 10 inches, and this follows from the very language of the specifications: "Girders in place of wall sufficient to add 15 feet in width to present building, to have curtain wall of brick." The specifications declare that "all figures are to be taken in preference to measurement by scale." It is a general rule of construction that, where words and figures are inconsistent, the words shall govern; and, even if the architects' drawings had been shown to indicate by a mere line an apparent location for this girder, that could not properly be held to control the clear language of the specifications. It should be observed that this girder was to be 10 inches wide by 28 inches deep, and that Lawrence's drawings do not attempt to show these dimensions drawn to scale, but merely indicate the girder by a single line. The approval of Lawrence's drawings by the building inspector indicated only his approval of the safety of the proposed structure, and could not have the effect of substituting those drawings for the architects', or effecting a change in the location of this girder. This being our view of the testimony, it is unnecessary to discuss the legal principles applicable to the effect upon a surety of an alteration in the principal's contract, or the cases cited by the defendant in support of this prayer. We must hold this prayer was correctly refused, and the special exception correctly sustained.

The defendant's twenty-eighth prayer asserts that if under the original plans and specifications Lawrence was to erect a stairway between the first and second floors, and that this was omitted by Lawrence at the request of the architects and that Lawrence was nevertheless paid therefor, and no notice in writing of said omission, or said payment, was given to the surety company immediately after such payment, then the verdict must be for the defendant. This prayer is founded upon the following term of the bond: "The said surety shall be notified in writing of any act on the part of the principal or his agents or employés which may involve a loss for which said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of said obligee," or to any representative duly authorized by him as such. It is difficult to understand how the omission of this staircase, or the payment therefor, as if it had been constructed by Lawrence, could involve any loss to the surety, when the omission was at the plaintiff's request, and when the surety is credited in the bill of particulars with the pay

Lawrence August 11, 1906, and when ao | bond without delay their checks will be reclaim is made on account of the second pay- turned as will those of unsuccessful bidment to Walsh for putting the staircase in. ders." Construing that provision, the court Without in any way withdrawing or mod- said: "It would be unconscionable for the ifying anything that has been heretofore city to retain the $500 as stipulated and liqheld by us as to the strict right of a surety uidated damages for a technical breach to stand upon the very terms of his con- which has occasioned no appreciable intract, we do not think that doctrine can be jury." These utterances of the late distininvoked for the release of the defendant for guished Chief Judge of this court are in acthe reason urged. See Leghorn v. Nydell, cord with the views of the majority of the 39 Wash. 17, 80 Pac. 833; Cochran v. Baker, courts of the country, and their application 34 Or. 555, 52 Pac. 520, 56 Pac. 641. to the case before him evinced his sound and wise judgment. How shall they be ap

By granting the defendant's eighth, ninth, and tenth prayers, and refusing the plain-plied to the case we now have before us? tiff's second prayer, the jury were instructed that there could be no recovery under the ninth clause of the contract relating to the payment of $50 per day for delays, thus holding that this stipulated sum was a penalty, and not liquidated damages. Willson V. Mayor and City Council of Balt., 83 Md. 203, 34 Atl. 774, 55 Am, St. Rep. 339, is one of the latest cases in this court upon that question. In that case Judge McSherry said: "This is one of the most difficult and perplexing inquiries encountered in the construction of written agreements. The solution of that question depends, in a large measure at least, upon the particular facts and circumstances of each separate case. As just compensation for the injury done is the end which the law aims to reach, the intention of the parties at the time the contract was entered into is often, though not always, given weight,

In the latest case in this state (Filston Farm v. Henderson, 106 Md. 355, 67 Atl. 228), such a stipulation as in the present case was held to provide liquidated damages. There they were by the contract so declared to be, but that is never alone conclusive. In 30 Enc. Law (2d Ed.) 1263, it is said to be the general rule that such a stipulation, unless the amount is grossly excessive, is treated as liquidated damages, and not as a penalty regardless of its designation in the agreement. Of course it is understood that such construction is deduced from the intention of the parties as disclosed by the whole agreement. In Hall v. Crowley, 5 Allen (Mass.) 304, 81 Am. Det. 745, the agreement was as follows: "For each and every day's delay in the completion of said houses after Dec. 1st, said Hall is to forfeit $5." The court said: "There can be no doubt that the sum named in the contract and the measure of damages will be restrict is to be treated as liquidated, and as fixing ed to such as the evidence shows have been the exact measure of compensation to which actually sustained, if the entire agreement the defendant should be entitled in case the and the peculiar circumstances of the sub- plaintiff did not complete his contract withject-matter of the contract indicate that the in the stipulated time. The lanreason and the justice of the case require guage of the contract as applied to the subthis to be done. • A stipulation to ject-matter is susceptible of no other reapay a specified sum upon the nonperform-sonable construction. Nor is it to ance of a contract is regarded as a penalty, be overlooked that the loss which would acrather than as liquidated damages, if the crue to the owner would be difficult to intention of the parties as to its effect is at prove, and still more difficult to estimate in all doubtful, or is of equivocal interpreta- money, In cases of this nature, tion, or where the agreement is where the intent of the parties is so clear, certain, and the damages for a breach there- the use of the word 'forfeit' in the clause of are easily and exactly ascertaiuable. providing for damages in case of breach is Finally, the tendency of late years has been not regarded as of much weight." In Ward to regard the statements of parties as to liq- v. Hudson River Building Co., 125 N. Y. nidated damages in the light of a penalty, 230, 26 N. E. 256, where the contract providunless the contrary intention is unequivocal- ed for a lump sum, to be paid by way of ly expressed, so that harsh provisions will liquidated damages for failure to complete be avoided, and compensation alone will be certain houses by a fixed time, the court awarded." The case then before the court held the term "liquidated damages" is not was a suit by Willson to recover a deposit controlling upon the question of construcof $500, which he had made in connection tion, but also held that, "where the parties with a bid for some public work for the have stipulated for a payment in liquidation performance of which a bond was required. of damages, which are in their nature unFailing, without fault on his part, to se- certain and unascertainable with exactness, cure bond, the city readvertised for bids, and may be dependent upon extrinsic conand the contract was awarded at a much siderations and circumstances, and the lower figure to another person, so that the amount is not, on the face of the contract, city sustained no loss whatever. The form out of all proportion to the probable loss, of bid required stipulated that "if the suc- it will be treated as liquidated damages."

itors' possible or probable interest in the performance of the principal obligation." The analogy between the present case and the case of the Bethlehem Steel Co., in 205 U. S., supra, cannot escape observation. In this case the stipulated sum of $50 per day is not only charged to the contractor in event of delay beyond the 70 working days, but it is charged against the owner in favor of the contractor in event of completion before the expiration of the 70 days, showing that both parties regarded time as of the essence. Moreover, all that has been said in the cases cited as to the difficulty of proving the loss and estimating its money value is applicable to this case, in which the plaintiff was seeking new quarters for an established and growing business, the transfer of which was delayed by the failure to complete the new building according to contract. Again, the same construction should surely be given to clause 9 which relates to delay in completion, as to clause 10, which relates to anticipation of completion. There should be uniformity of construction, and mutuality of application. If the contractor had completed the work in 69 days would he not have been clearly entitled to $50, and if he had completed it in 60 days, would he not have been clearly entitled to $500? On the other hand, if he had occupied 71 days, would he not have been liable to the owner for $50, or if he had occupied 80 days would he not have been liable for $500? We think he would, unless it can be said that $50 for one day is an unconscionable amount, and we do not think this can be contended. If the rate per day is not excessive or unconscionable in itself, it cannot be made so by continued delay in performance. From every point of view of this question we are forced to the conclusion that this stipulation was for liquidated damages, and that the learned judge erred in refusing the plaintiff's second prayer, and in granting the defendant's eighth, ninth, and tenth prayers.

19 Fed. 239, a stipulation for a payment of $1,000 per week for noncompletion of a bridge was held a stipulation for liquidated damages. The court observed that the stipulation was not for a large sum in gross, or for any mere technical breach, and that "the damages are graduated according to the time the delay continues, and are not excessive or unreasonable." In U. S. v. Bethlehem Steel Co., 205 U. S. 105, 27 Sup. Ct. 450, 51 L. Ed. 731, a party submitted different bids for work, the largest price being for the shortest time of delivery, and the court said that "acceptance of the bid for the shorter time is evidence that the element of time is of essence, and a stipulated deduction of an amount per day equivalent to the difference between the long and short time for delivery is to be construed as liquidated damages, and not as a penalty, though the word 'penalty' may have been used in some portions of the contract," and the court cited Sun Printing Ass'n v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. 366, for a full consideration of the present state of the law upon the subject. In Clydebank Eng. Co. v. Don Jose Ramos (Appeal Cases) N. S. 6 (1995), there was a contract to build four torpedo boats for the Spanish government within certain dates, with a penalty for later delivery at the rate of £500 per week for each vessel. It was held that the mere use of the word "penalty" on one side, or "damages" on the other, is not conclusive as to the rights of the parties. Lord Halsbury said, speaking of the stipulation: "It was not intended merely as something in tenorem. Both parties recognized the importance of time, and it is impossible to lay down any abstract rule as to what may be extravagant or unconscionable"-and the stipulation was held to be a stipulation for liquidated damages. Lord Davey delivered a separate concurring opinion, citing Lord Elphinstone v. Monkland Iron Coal Co., 11 App. Cas. 332, in which Lord Watson said: "When a single lump sum is made payable The defendant's twentieth prayer asked the by way of compensation on the occurrence court to instruct the jury that it is conceded of one or more of several events, some of in this case that the sum of $4,325, being a which may occasion serious, and others but balance of the contract price, is due and untrifling, damage, the presumption is that the paid, and that $1,600 thereof bears interest parties intended the sum to be penal and from the time the roof was on and complete, subject to modification. The payments stip- and ready for slag roofing, and that the balulated here are not of that character. They ance bears interest from the completion of are made proportionate to the extent to the whole concrete work; but the prayer which the respondent may fail to fulfill their was refused. This prayer assumes that $4,325 obligations, and they are to bear interest was due to the plaintiff, whereas that was from the date of the failure. I can find emphatically contested by the plaintiff. neither principle nor authority for holding der the contract, out of this balance which that payments so adjusted by the contract- was conceded to be unpaid, but denied to be ing parties, with reference to the actual due, $1,600 was due when the roof was on amount of damages, ought to be regarded and complete and ready for slag roofing, and as penalties." Lord Davey then proceeded the balance upon satisfactory completion of to say: "Courts can only refuse to enforce the whole work. The defendant's letter of performance of such an obligation when the January 30, 1907, admits the work was not payments specified could not possibly have then completed, and there is no evidence of

Un