Opinion
Decided April 3, 1934.
Though a deposit of money provided for in a lease be designated therein as "liquidated damages for any breach of any condition of this lease," a finding is not thereby precluded that it was not the intention of the parties to regard the deposit as liquidated damages. Where parties have stipulated that a certain deposit shah be regarded as a penalty, the obligee is entitled to no more of it than his actual damage. Where a general finding has been made by the trial court, the evidence not having been transferred and no exception appearing to the admission of any evidence, the presumption is that the finding was based upon an adequate amount of competent evidence.
ASSUMPSIT, in the common counts, to recover the balance of a deposit of one hundred dollars.
The plaintiff was the lessee of a store from the defendant. At the time of the letting the plaintiff deposited with the defendant the sum of one hundred dollars in accordance with a provision of the lease which reads as follows: "Said Durand has this day deposited with said Cohen $100.00 as liquidated damages for any breach of any condition of this lease." During the course of the tenancy the plaintiff violated a condition of the lease by cutting a door in the north wall of the demised premises without the written consent of the defendant.
The actual damage done thereby was appraised by the court at fifteen dollars.
The court below found that the one hundred dollar deposit, though denominated "liquidated damages," was intended by both parties "in the nature of a penalty." It was further found that it was the intention of the parties that if any damage was done to the premises by the plaintiff, it was to be estimated and "to come out of the $100.00 deposited."
Transferred from the municipal court of Nashua by French, J., who found for the plaintiff in the sum of eighty-five dollars.
Doyle Doyle, for the plaintiff, furnished no brief.
Bolic A. Degasis, for the defendant, furnished no brief.
"If the intention of the parties, proved by competent evidence, was that the amount of the bond was liquidated damages, it was liquidated damages; if they intended it to be a penalty, it was a penalty. The bond, and other contemporaneous writings of the parties, parts of the same transaction, and relating to the same subject matter, are the evidence of their intention." Doe, C.J. in Houghton v. Pattee, 58 N.H. 326. See also, Morrill v. Weeks, 70 N.H. 178; Clark v. Britton, 76 N.H. 64, and cases cited. The finding of the municipal court is clear that it was not the intention of the parties to regard the deposit as liquidated damages, and the fact that the parties called it liquidated damages in the lease does not conclusively establish that this finding is erroneous. Davis v. Gillett, 52 N.H. 126, 129. Neither the entire lease nor the testimony has been printed as part of the transferred case, and no exception appears to the admission of any evidence. Under these circumstances we must assume that the finding of intention was based upon an adequate amount of competent evidence.
Although it is clear that the parties did not intend the deposit to be liquidated damages, it is not altogether clear whether they intended it as a penalty, or as security deposited with the defendant from which he might deduct his damage in case of violation of the lease. If the latter was the intention of the parties, the judgment below is clearly correct. If the parties intended the deposit as a penalty, the judgment must also be sustained, for in the latter event the obligee is entitled to retain no more than his actual damage. Davis v. Gillett, supra; Hurd v. Dunsmore, 63 N.H. 171.
Judgment on the verdict.
All concurred.