
    Newman vs. Wolfson.
    Whether a sum agreed upon by parties to a contract as the measure of damages shall be considered as liquidated damages or only as a penalty, will depend upon the intent of the parties and the peculiar circumstances of the subject-matter of the contract. If the damages must necessarily be wholly uncertain and incapable of estimation, the party failing to perform will be held to pay the amount as liquidated damages. '22 Wend., 201; 101 Mass., 334; 97 lb., 445 ; 13 Gray, 42 ; 58 Ga., 567 ; Code §§2940, 2941.
    
      (a.) The keeper of a saloon in the city of Columbus, by written contract, for the sum of $1,456.15, sold his stock of goods, bar-room fixtures, etc,, together with the good will of the business, to another, and covenanted not to engage in the same or a like business in that city for a period of five years, and the vendor bound himself to the purchaser, “ his executors, etc., in the sum of two thousand dollars as liquidated damages for the faithful ’performance of this his promise. ” The vendor opened a bar-room shortly afterwards in the city:
    
      Held, that the amount stated in the contract is to be taken as liquidated damages, and not as a mere penalty ; nor is the contract unreasonable. •
    October 17, 1882.
   Speer, Justice.  