
    Hise v. Foster et al.
    
    1. Promissory note: liquidated damages. The defendants executed their promissory note for “one hundred bushels of good, sound merchantable corn,” to be delivered ata place named in the note, the note reciting that “this corn is estimated at twenty dollars." Meld, that the damages for a non-performance of the contract to deliver the corn, was liquidated at twenty dollars, by the agreement of the parties to the note.
    
      Appeal from Marion District Court.
    
    Tuesday, June 28.
    ACTION founded upon the following instrument:
    “ Feb. 18th, A. D. 1863. On or before the first day of December next, we, or either of us, promise to pay to Elizabeth Hise, one hundred bushels of good, sound, merchantable corn, to be delivered on the J. A. "Wilbur farm. This corn is estimated at twenty dollars.
    (Signed) “Joseph B. Eorbes,
    “Joseph -A. Wilbur.”
    The defense set up is that the above note was given in part payment of a horse purchased at $39 ; that $10 was paid in cash, and $9 in wheat. The balance, $20, was to be paid as stipulated in the above instrument. That at the' time said note was given, corn was worth fifteen cents per bushel, but that by agreement of the parties to said note, twenty cents per bushel was stipulated upon as the price of the corn, to be-paid in liquidation of said note for the corn aforesaid. The cause was tried by the court, who found and entered upon the record the following facts:
    1. That the defendants executed and delivered to the plaintiff the above described note.
    2. That said Elizabeth is, and was at the time of commencing suit, a married woman, and wife of said Wm. E. Hise.
    3. That the corn was, on the 1st of December, 1863, at the place where said corn was to have been delivered, worth fifty cents per bushel.
    4. That the plaintiff demanded the corn at the time and place where the same was to have, been delivered, and defendants refused to deliver the same, but offered to pay twenty dollars. And there being no other facts proved, the court, upon said facts, rendered judgment for plaintiff for fifty t7/t dollars and costs. A motion for a new trial was overruled, and the defendants appeal.
    
      Casady & Pollc for the appellants.
    No appearance for the appellee.
   Lowe, J.

We are of opinion that the court erred in its conclusion upon the facts found, and has failed to give effect to contract, according to tbe real intent of tbe parties. In tbe contract for tbe delivery of COrn, and as a part thereof, tbe parties bave thought proper to estimate or fix tbe value of tbe same in money, showing thereby, not only tbe amount of tbe defendants’ indebtedness, but what must be taken as stipulated, or stated damages, in tbe event there should be a failure to deliver tbe amount of corn specified. In arriving at tbe true intention of tbe parties, we must look at tbe subject matter of tbe contract, and tbe language employed. In casting about for an object in valuing tbe corn to be delivered, it is difficult to imagine any, unless it is that tbe parties meant to state tbe amount in gross to be paid for tbe non-performance of tbe agreement. At all events, tbe measure of damages, according to the intent of tbe parties, as expressed by tbe words of tbe instrument, is not tbe value of tbe article called for by the contract at tbe date of payment, but tbe amount specified and fixed upon tbe face of tbe instrument as a part of the contract.

As we interpret tbe contract, tbe decision below must be reversed, and tbe cause remanded, that a judgment may be rendered in accordance with this opinion, tbe costs in this court to be paid by tbe appellee.

Eeversed.  