1822.

Newsom

V.

Pryor.

boundary, disregarding distance, yet, in the present case, the distance shall be the criterion of boundary, disregarding the call for crossing the river."

The judges refused to give this instruction, and charged the jury "that the second line of the said grant must be extended such a distance on the course called for as will cross Duck river to the opposite bank."

To this opinion an exception was taken; and the jury having found a verdict for the plaintiff, in ejectment, the defendant, in the Circuit Court, has brought the cause into this Court by writ of error.

We can perceive no sound reason for the distinc tion between a call for a river at the end of a line, and for a river in the course of a line. There is as much reason in the one case for supposing the surveyor intended the line should cross the river, or, in case of actual survey, for supposing he did cross the river, as in the other, for supposing an intention to stop at the river, or an actual termination of the line at the river.

Whether the motives for the call were that the acquisition of the land on the river was an object with the purchaser, or that the call for the river conduced. more certainly to the designation of the land intended to be acquired, the motives for considering it as the controlling call in the patent, to which distance must be subordinate, seem to be precisely the same whether the call be to cross the river, or to terminate at it.

It has been urged as an objection to the mode of surveying the land directed by the Court, that the

last line will not cross the south fork, and that the land will not be "on both sides of the two main forks of Duck river."

But this objection will not be removed or diminished by the instruction required by the plaintiff in error. Nor can the land be so surveyed as that the last line shall cross the south fork. From the termination of the third line, it is necessary to proceed to the beginning, and the platt shows us that the south fork does not run between the two points. It cannot be brought between them, if at all, without extending the third line an immense distance, and changing the whole figure of the platt, or entirely disregarding the act of Assembly, which directs lands to be taken up by lines running with the cardinal points, except in particular cases, of which this is not one.

Judgment affirmed with costs.

1822.

Tayloe

V.

Sandiford.

[COMMON LAW.]

TAYLOE V. T. & S. SANDIFOrd.

In general, a sum of money in gross, to be paid for the non-performance of an agreement, is considered as a penalty, and not as liquidated da

mages.

A fortiori, when it is expressly reserved as a penalty.

Thus, where in a building contract, the following covenant was con

tained: "The said houses to be completely finished on or before the

24th of December next, under a penalty of 1000 dollars, in case of failure;" it was held, that this was not intended as liquidated damages for the breach of that single covenant only, but applied to all the covenants made by the same party in that agreement; that it was in the nature of a penalty, and could not be set off in an action brought by the party to recover the price of the work.

An agreement to perform certain work within a limited time, under a certain penalty, is rot o be construed as liquidating the damages which the party is to pay for the breach of his covenant.

The case of Fletcher v. Dycke, 2 Term Rep. 32. commented on, and distinguished from the present.

A person owing money under distinct contracts, has a right to apply his payments to whichever debt he may choose, and this power may be exercised without any express direction given at the time.

A direction may be evidenced by circumstances, as well as by words: and a positive refusal to pay one debt, and an acknowledgment of another, with a delivery of the sum due upon it, would be such a circumstance.

Feb. 5th.

Feb. 12th.

This cause was argued by Mr. Jones, and Mr. Hay, for the plaintiff in error, and by Mr. Key' for the defendants in error.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is a writ of error to a judgment of the Circuit Court of the county of Alexandria, rendered in an action of assumpsit, brought by T. & S. Sandiford against John Tayloe. It appeared on the trial of the cause, that on the 13th of May, 1816, the parties entered into a written contract, by

a They cited 2 Comyn on Contracts, 528-539, and the cases there collected. Fletcher v. Dycke, 2 T. R. 32.

b He cited 4 Cranch, 317. 6 Cranch, 9. Dennis v. Cummins, 3 Johns. Cas. 297. Smith v. Dickenson, 3 Bos. & Pul. 630. Bank of Columbia v. Patterson, 7 Cranch, 299.

which the defendants in error undertook to build for the plaintiff three houses on the Pennsylvania avenue in the city of Washington. On the 18th day of the same month, the parties entered into a contract, under seal, for the building of three additional houses, at a stipulated price. This contract contains the following covenant: "The said houses to be completely finished on or before the 24th day of December next, under a penalty of one thousand dollars, in case of failure."

The parties entered into a third verbal contract for some additional work, to be measured, and paid for according to measurement.

These three houses were not completed by the day, and the plaintiff in error claimed the sum of 1,000 dollars, as stipulated damages, and retained it out of the money due to the defendants in error. This suit was, thereupon, brought; and, on the trial of the cause, the defendant in the Circuit Court claimed to set off in this action 1,000 dollars, as in the nature of stipulated damages; but the Court overruled this claim, and decided that the said sum of 1,000 dollars had been received in the nature of a penalty, and could not be set off in this action.

The defendant then moved the Court to instruct the jury, that "upon the evidence offered, if believed, the plaintiffs were not entitled to recover in this action the said sum of 1,000 dollars, inasmuch as the same, if due at all, was due under a contract under seal, and that the declarations of the defendant, and the understanding between the parties as to the reservation of the said 1,000 dollars, given in evi

1822.

Tayloe

V.

Sandiford.

1822.

Tayloo

Sandiford.

dence as aforesaid, was competent and sufficient evidence of the defendants' intention to apply his payment to the extinguishment, in the first instance, of such parts of the said moneys as were due by simple contract, and to reserve the 1,000 dollars out of the money due under the said original contract." This instruction the Court refused to give; and did instruct the jury "that it was competent to the plaintiffs to recover the said 1,000 dollars in this action, unless they should be satisfied by the evidence that the defendant, at the time of paying the money, had expressly directed the same, or a sufficient part thereof, to the payment of the 1,500 dollars due on the simple con

tract."

To both these opinions the defendant excepted; and the jury having given a verdict for the plaintiff in the Circuit Court, this writ of error was brought to the judgment rendered thereon.

It is contended, by the plaintiff in error, that the Circuit Court erred.

1st. In overruling the claim to off-set the 1,000 dollars mentioned in the agreement.

2d. In declaring that the plaintiff in that Court might so apply the payments made, as to discharge the contract under seal, and leave the sum retained by the defendant in that Court, to be demanded under the simple contract.

1. Is the sum of 1,000 dollars mentioned in the agreement of the 13th of May, to be considered as a penalty, or as stipulated damages?

The words of the reservation are, "The said house to be completely finished on or before the 24th day