dispensed with by some inability to perform provided against in the lease; the third, to terminate the lease at the end of any year on giving the notice required, and this would have released him from liability for any breach but for the past year. He chose to do neither, and now claims to show that he has done better for the plaintiffs by keeping their coal in place for a higher price. This policy, if taken in time and extended, might have covered the entire coal region, and but a single mine might have been worked. Competition thus set at defiance would undoubtedly be profitable to such a lessee, if, when called on to answer in damages to other lessors for broken covenants, he might successfully defend himself by showing that there were parties who had given, or were willing to give, higher prices for the unmined coal than he had contracted to give. If he could do this he might be fairly entitled to stand acquitted of damages and to have the credit of a discovery!

The defendant covenanted to take out of the Burroughs mine, leased in 1852, without any reference to any other mine or lease, so many tons per year, while the term lasted; and on failure to take them out, to pay for the stipulated number taken or not taken. The number of tons to be taken or paid for was the moving consideration for the lease, and must be so regarded. It was, therefore, a clear case of stipulated damages in case of non-performance or non-performance pro tanto. The parties fixed it as the true measure of damages in case of failure, "without reference to the extent of the injury that might ensue by non-performance," and, so far as the covenant is concerned, are bound by it. The uncertainty as to the extent of the injury which may ensue is a criterion by which to determine whether it is a case of liquidated damages or a penalty: Chitty on Cont. 763, 766.

Pearson v. Williams, 26 Wend. 630, is a case somewhat in point. A purchaser of certain city lots, in consideration of a conveyance of them for a certain sum of money, covenanted that he would, by a certain time mentioned, erect thereon two brick houses of specified dimensions, or in default pay on demand to the grantor $4,000. It was held that this was a case ot liquidated damages, it being evident that the covenant to erect the houses was part consideration for the sale. See also

Dakin v. Williams, 17 Wend. 447; and the same case, 22 Id. 201. Perhaps more directly in point with the case before us is Young v. White, 5 Watts, 460. There it was a contract to have a canal boat built and ready for the spring trade-1st of March-or on a failure to pay $10 a day to the other party. This sum was held to be liquidated damages. The number of days during which there might be a failure was uncertain, hence the parties agreed on damages for each day. So here the number of tons which might be short of the number agreed to be taken out was also uncertain, and like the case of the boats the damages were fixed to meet the deficiency at so much per ton. These cases are hardly distinguishable in principle. But we forbear to enlarge; we are of opinion that the defendant was bound by his covenant to pay for the coal not mined so far as he was not released from the same. Seeing nothing to correct, the judgment is affirmed.

CRAWFORD & MURRAY V. WICK.

(18 Ohio State, 190. Supreme Court, 1868.)

Parol contract to change written lease-Statute of Frauds. By a parol contract between the parties to a coal lease, the lessor agreed to forbear to enforce an accrued forfeiture and to permit the lessees to continue to work the demised premises and also to relinquish all claim for damages on account of the non-performance of a certain store contract which was supplemental to the lease. In consideration thereof the lessees agreed to pay three cents per ton on all coal already mined and four cents per ton on all coal thereafter to be mined under said lease, in addition to the payments stipulated for in the lease. The lessees continued to work in accordance with the terms of the original lease, and their possession was as well referable to the written as to the supplemental parol lease. In an action for damages for breach of the parol lease: Held, that not being in writing it was clearly within the Statute of Frauds, and there was no such performance as to take it out of the statute.

Store contract in restraint of trade. The lessee of a coal mine agreed with the lessor, by a supplemental contract, that he would use all his influence in a reasonable and proper manner to have all his employes and their families do their entire trading at the store of the lessor, and that the lessee would not accept, receive or pay any order drawn upon 1 Beecher v. Dacey, 45 Mich. 92,

him in favor of any other store by such employes, nor give any such order, note or evidence of indebtedness to be transferred to any other store for goods, etc.: Held, to be a contract in restraint of trade, which tended to unwarrantable monopoly and extortion.

Release of uncollectible claim, no consideration. The release of a claim for damages upon alleged breach of an unlawful covenant, reserved against a coal lessee, is not a valid consideration for a new contract.

Error to the Common Pleas of Mahoning County. Reserved in the district court.

The case is sufficiently stated in the opinion of the court.

F. E. HUTCHINS and WILLEY & CARY and B. F. HOFFMAN, for plaintiff's in error.

M. BIRCHARD and C. E. GLIDDEN, for defendant in error.

BRINKERHOFF, J.

This is a petition in error filed in the district court and reserved for decision here, by which it is sought to reverse a judgment of the court of common pleas. The plaintiffs in error were defendants below, and the defendant in error was plaintiff below.

The petition in the original case is very far from being a model of that clearness and conciseness of statement which the code of civil procedure prescribes, but we gather from it that the plaintiff below, Wick, with several other parties who were owners in common with him of fractional portions of certain coal lands, on the 15th of June, 1885, executed to one Arms a lease of such coal lands, with certain mining rights and privileges therein specified, for the term of twenty-five years, giving the right of immediate possession and recogniz ing the right of the lessee to assign his term under the lease.

It does not appear that anything was done under the lease by Arms, the lessee; but on April 17, 1856, he sold and assigned the lease and term to Crawford & Murray, the plaintiffs in error, who thereby covenanted with said lessee to perform his covenants in the lease; and thereupon Crawford & Murray went into possession of the demised premises and

continued to hold the same and mine coal therefrom until long after the making of the alleged verbal contract hereafter mentioned and on which this suit is brought.

The petition also shows that contemporaneously with the execution of the lease to Arms, Wick alone entered into a side contract with him, which is known in these proceedings as "the store contract," and the stipulations of which on the assignment of the lease by Arms to the defendants below they agreed with him to perform "so far as he was bound to perform them."

This store contract being an important element in this case and having features so unique that I fear no synopsis could do it justice, I set out entire, in order to a full understanding of the case, and because it seems to me to be well deserving of such perpetual remembrance as the process of embalming in a book of law reports can confer. It is as follows:

"This agreement, made this first day of January, A. D. 1856, by and between Charles D. Arms, of the first part, and Hugh B. Wick, of the other part, witnesseth:

"The said Charles D. Arms, in consideration that the said Hugh B. Wick, together with other persons, did, on the 15th day of June, A. D. 1855, lease and rent or let unto the said C. D. Arms certain rights and privileges of mining and removing stone coal on and from what is known as the 'Baldwin farm,' in Youngstown, Mahoning county and State of Ohio (reference being hereby made to said lease and agreement), and in pursuance of an agreement to this effect, made at the time of making said lease, the said C. D. Arms does covenant and agree with said Hugh B. Wick that he, his heirs, administrators and assigns, will use and exert all his and their influence, in a reasonable and proper manner, to have each and all of his and their employes, laborers and agents and the entire families of all such employed in any way in the mining operations contemplated by said lease on said lands, or connected therewith, under his or their employment, do their entire trading, and make all their purchase of goods, merchandise, clothing, boots, shoes, groceries, etc., at and through the store or stores of said Wick, his heirs, administrators or assigns, is or may be hereafter interested in as owner or owners, in whole or in part, or at such store or

stores, or with such person or persons or with such firm or firms as he, the said Wick, his heirs or assigns may at any time direct (he or they giving said Arms, his heirs or assigns or their representatives, reasonable notice thereof) in the same manner, and to the same full extent as if said Arms, his heirs, administrators or assigns were at the time of such contemplated business, interested in such store as owner or owners, in whole or in part, and to secure to such store the entire trade, patronage and custom of all his and their employes, laborers and agents and their families, during the continuance of the aforesaid lease of June 15th, 1855; and with intent, and for that purpose, the said Arms agrees and binds himself that neither he, his heirs, administrators or assigns will, during the continuance of the aforesaid lease, make any agreement or arrangement with other store, firm or persons, to have any of his or their employes, laborers, agents or any of their families aforesaid, do any of their trading or mercantile business, or make any of their purchases of goods, wares or merchandise at or with any other store, firm or persons than the stores, firm or firms said Wick may be interested in, or such as he may direct as hereintofore contemplated. And the said C. D. Arms, for himself, his heirs, administrators and assigns, agrees that he and they will not pay or cause to be paid or assume to pay any debt, account or claim any other store, firm or person may have against any of his or their aforesaid employes, agents or families for goods, wares or merchandise furnished to said employes during such employment or prior thereto (than such as said Wick or his legal representatives shall direct), nor accept, receive or pay any order or orders drawn by any such employes or agents or their representatives, for goods, wares or merchandise, as above mentioned, purchased by him or them of any other store, firm or persons, nor give any such employes or agents any order or orders to any other store, firm or persons for goods, wares or merchandise, nor any note or other evidence of indebtedness, in order that the same may be disposed of, or transferred, for goods, wares or merchandise, contrary to the spirit of this agreement, nor purchase any note or other evidence of indebtedness giving by any such employes or agents or their families for goods, wares or merchandise, with intent to evade any of the stipulations herein, on his or their part.