Farmers' National Bank of Salem vs. Rasmussen.
if the above note is not paid without suit, to pay ten dollars in addition to the above for attorney's fees,' does not destroy the negotiability of the note.'" The same doctrine has been held in Louisiana and Iowa in late cases cited in the last American Edition. Byles on Bills, 32, note; vide 3 Iowa, 144; 28 do., 220; 29 do., 120, and 184, 244; 30 do., 131; also 32 do., 445.
These cases are decisive of the questions involved in this, unless our statute has given a construction to such contracts that the court is not at liberty to depart from. Section 829 of the Civil Code of 1865-6, provides: "Penalties imposed by contract for any non-performance thereof, are void." * * * * This contract plainly does not come within this section, for the stipulation in this note to pay ten dollars attorney's fees if action is commenced thereon, at most, can be construed to be only an agreement for liquidated damages upon default and in event of suit commenced. Section 830, reads: "Every contract, by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided by the next section." The next section referred to, section 831, is as follows: "The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage." The language of this statute is strong and is intended to make void the usual penalties appended to contracts for their violation. The statute is a peculiar one and we are not aware of any judicial construction given to it in this Territory, The whole code is intended rather to be itself a construction of the common law, than a statute to be construed by the courts—a compilation of the decisions of the common law courts. But giving to the statute the strictest construction that can be contended for, we see no reason why this case may not come within the provision of section 831, as one where "it would be impracticable or extremely difficult to fix the actual damage." And, we are, therefore, of the opinion that the judgment of the court below should be Affirmed.
Shannon, C. J., dissenting.
