
    SIVERT A. CHRISTIANSON v. JACOB O. HAUGLAND AND ANOTHER.
    
    April 24, 1925.
    No. 24,489.
    Condition of bond for conveyance of land fixed amount to be paid as liquidated damages and not as penalty.
    A bond for $3,700 was conditioned for the transfer of certain land by the obligor to the obligee within a specified time. No other act was required to satisfy the condition of the bond. Held that the bond fixed the amount to be paid as liquidated damages and in lieu of performance, and did not provide for a penalty to secure performance.
    See Damages, 17 C. J. p. 950, § 244; p. 951, § 246.
    Action in the district court for Chippewa county on a bond. The case was tried before Baker, J., who ordered judgment in favor of plaintiff. Defendants appealed from an order denying their motion for a new trial.
    Affirmed.
    
      Oluf Gjerset, for appellants.
    
      G. A. Fosnes & John G. Haave, for respondent.
    
      
       Reported in 203 N. W. 433.
    
   Lees, C.

Respondent owned 160 acres of land in Swift county, and the appellant, Jacob O. Haugland, owned several tracts of land in Saskatchewan, Canada. In September, 1921, they entered into a contract for the exchange of the Swift county land for three quarter sections of the Canadian land. There was some question about the title to one of the quarter sections, and it was agreed that, if the title could not be made good within eight months, Mr. Haugland should have the privilege of substituting another quarter section in its place. Subsequently conveyances of the Swift county land and of two of the quarter sections of Canadian land were made pursuant to the terms of the contract. Because the title to the third quarter section was not good, it was not included in the transfer to respondent. In June, 1922, the substituted quarter section was conveyed to respondent. In August, 1922, lie conveyed this land to Mr. Haugland for the reason that be was not satisfied with it and desired to get title to tbe quarter section covered by tbe original contract. When tbe reconveyance was made, Mr. Haugland prepared, executed and delivered a bond to respondent. Performance of its conditions was guaranteed by tbe appellant J. H. Skogrand. After a recital of tbe facts, tbe bond contains this condition:

“Tbe condition of this obligation is such that if said Jacob O. Haugland * * * make, execute and deliver unto said Sivert A. Christianson * * * within eight months from this date, a good and sufficient transfer and conveyance according to tbe system in use for conveyance of land in Saskatchewan, Canada, free from.liens and encumbrances, except tbe taxes for tbe last year, of tbe southwest quarter of section two (2) in township twenty-seven (27) of range thirty (30) W. 1 M., in Saskatchewan, Canada, then this obligation to be null and void, otherwise to remain in full force and effect.”

Tbe land described is tbe quarter section covered by tbe original contract, which bad not been conveyed to respondent. Tbe condition of tbe bond was not performed, and this action was brought to recover $3,700, tbe amount of tbe bond. It was tried by the court without a jury and judgment in respondent’s favor was ordered. Tbe appeal is from an order denying a new trial.

At tbe trial appellants introduced evidence tending to show that tbe value of tbe land described in tbe bond did not exceed $600. Respondent offered no evidence to tbe contrary, taking tbe position that tbe value of tbe land was immaterial and that be bad tbe absolute right to a judgment for $3,700. In other words, be claimed that amount as stipulated damages which appellants were bound to pay if tbe land was not conveyed, and tbe only question to be determined is whether, under all tbe facts and circumstances, tbe sum named is to be regarded as a penalty or as liquidated damages.

Respondent’s equity in tbe Swift county land was valued at $11,-100. If there was no difference in tbe value of tbe three quarter sections be was to receive, each represented an exchange value of $3,700, tbe exact amount of the bond.

If the land described in the bond was worth but $600, it is difficult to understand why that amount was not written in the bond, or why appellants did not satisfy respondent’s claim for $3,700 by conveying the land.

The bond was brought to respondent by Mr. Haugland. Respondent read it and said he thought the amount should have been $4,000. Mr. Haugland’s explanation was that $3,700 was one-third of the value placed on the three quarter sections when the original agreement was made, and this satisfied respondent that the correct amount had been inserted in the bond.

Upon this state of facts, we hold that the amount stated was not a penalty, but liquidated damages.

The conveyance of a particular tract of land was the only act required to satisfy the condition of the bond. It was not conditioned upon the performance of several distinct or separate acts. In determining whether the parties intended to liquidate damages or penalize nonperformance of the undertaking, the fact that only one act was to be performed is an important consideration. Womack v. Coleman, 89 Minn. 17, 93 N. W. 663; Berghuis v. Schultz, 119 Minn. 87, 137 N. W. 201; 1 Pomeroy, Eq. Jur. (4th ed.) § 442.

The purpose of a penalty is to secure performance, while the purpose of stipulating damages is to fix the amount to be paid in lieu of performance.

Appellants had the option of discharging their obligation by conveying the land or paying $3,700. The obligation to pay arose as soon as there was a failure to convey in accordance with the terms of the bond. The contract evidenced by the bond determined the amount to be paid in lieu of performance of the promise to convey.

The trial court was right in holding that the bond provided for the payment of liquidated damages, and the order denying a new trial is affirmed.  