
    No. 821
    STEVENS v. JONES
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4764.
    Jan. 21, 1924
    355. DAMAGES — Contract requiring payment of specific sums on failure of restaurant to produce certain income, construed as penalty and not liquidated damages.
    Attorneys — R. A. Sastner, for Stevens; Boyd, Cannon, Brooks & Wickham, for Jones; all of Cleveland.
   SULLIVAN, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action for $5,000 damages in the Common Pleas of Cuyahoga County, wherein William F. Jones was plaintiff and Harry J. Stevens was defendant. Plaintiff leased a restaurant to defendant and brought this action on the contract, which recited that whereas the business then conducted in said restaurant by plaintiff was in a prosperous condition, producing an average gross weekly income of $750, defendant agreed that if at any time the average gross weekly income should be less than $75)0 for a period of four weeks in succession, plaintiff would be entitled to immediate possession, to terminate the lease, and thereupon $5,000 should be due to plaintiff from defendant as the amount of loss sustained. At the close of all the evidence each party moved for a directed verdict. The trial court granted plaintiff’s motion, and directed a verdict in his favor. Defendant prosecuted error. Held:

The question is whether, under the contract, the payment of $5,000 was, as a matter of law, liquidated damages or a penalty. Damages are not liquidated damages unless it is apparent that their amount is uncertain, that the proof is difficult, and that the sum named is not manifestly unreasonable and disproportionate. 79 OS. 372. In! the instant case the provision appears to be a penalty. The proof of damages would not be difficult. The performance of the contract was not altogether in defendant’s control, but depended on the will of the customers of the restaurant. Plaintiff should be allowed to recover only his actual damages. The trial court erred in directing a verdict for plaintiff. Judgment reversed and cause remanded.  