
    Edward S. Bodett v. William Lees & Co.
    The mere delay to make payment of the amount of an award, when the debtor has taken no steps to set it aside and has not denied its obligatory force, and when no formal demand upon him to enforce it has been made, will not subject the debtor to the payment of the stipulated penalty in addition to the amount of the award.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    
      P. E. Bonford, for plaintiff,
    
      J. Q, A. Bellows, for defendants and appellants.
   Merrick, O. J.

This suit is brought upon the following award and agreement, viz:

We, John MeOlain and Jonn G. Poindexter, chosen as arbitrators by William Lees & Go., of this city, and Edward T. Bodett, also of this city, after a full and impartial examination of all the points of difference between said parties, and taking into consideration the whole subject-matter thereof, agree that the following statement, made by us, shall he considered as final and just, and recommend that the parties accept tlfe same, and let it be the end of said controversy.

New Orleans, April 16t7i, 1855,

William Lees & Go.

To Edward S. Bodett, Dr.

To this, admitted by your acceptances.................., $115 3Q

To full pay, as per contract for one month................. 125 00

To this amount, for levee expenses...................... 80 OO

To this amount, for expenses and time while sick.......... 47 20

Total........ $817 50

Having agreed to the above, we hereunto sign our names in our aforesaid capacities, on the 16th day of April, 1855, at the city of New Orleans.

[Signed] John McClain.

“ John G-. Poindexter.

“ We hereby hind and obligate ourselves, our heirs, and asaigns, each to the other, in the just .and full sum of two hundred and fifty dollars, lawful money of the United States, to agree to, and be bound by, the decision above rendered by the arbitrators as chosen by us.

[Signed] Edward S. Bodett.

“ William Lees & Co.

New Orleans, April 16th, 1855.

! u • ;.j)ai niff b: ;.cUii: ion *o hi-'. d 'mand for the amount of the v.v vd, ,>!lc, cs, tno -..(tin ' ' ,• o a- and neglected to pay petitioner the r.’iu nt .!-■ ■- :-d j,M .> ;i idth'hm iiag their obligation so to do: and r'c.-. no ucmue . h-;i -reO)’ 5'■ -' hire become indebted to petitioner in the furl'- umof Uvc'hundred er = Civ dollars, -he penalty fixed by said bond a:'. 1: .. :‘hid dama'-'

T. nefondnntii u'.mil tlu: correr ipr: of plain,ills’ demand for the amount, of the award, and plead the want of an amicable demand for the same, and deny all the other allegations of the petition. The court having sustained plaintiffs’ pretensions the defendant has appealed.

The testimony does not show, that any demand had' been made upon the defendants to pay the award previous to the institution of the suit. Even if such demand had been made we are by no means prepared to say, that the mere neglect of the defendants to make payment would have rendered them liable for both the award and the penalty.

Art. 1929, O. 0., declares, that “ The damages due for the delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

Art. 2121, “The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He cannot demand the principal and the penalty together, unless the latter be stipulated for mere delay.”

And by Art. 3073, O. 0., it is announced, that “It is usual to undergo (impose) a penalty of a certain sum of money in the submission which the person w.ho shall contravene the award, or bring an appeal therefrom, shall he bound to pay to the other who is willing to abide by it: but this covenant is not obligatory, (essentielle,) and the submission may subsist without the penalty.”

By Art. 3097, it is provided, that if a party appeals from the award he should first pay the penalty, but if he reverses the same on the appeal, the penalty shall ho refunded him, but not if the award is affirmed.

In view of all these provisions of law we think it is clear, that the plaintiff has neither alleged nor proven a sufficient ground upon which the penalty of the bond can be declared forfeited. The defendants merely “ bound and obligated themselves,” under the penalty, “ to agree to, and he hound by, the decision rendered by the arbitrators.” They do not appear to have taken any steps to set aside the award, nor have they denied its obligatory force. Their delay to make payment, at least without a formal demand upon them, eatsnot be construed into such a forfeiture.

So much, therefore, of the judgment of the lower court as gives the plaintiff the penalty in addition to the award is erroneous.

The want of an amicable demand is not urged in this court as a ground of reversal of the judgment as to the costs.

It is, therefore, ordered, adjudged and decreed by the court,- that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed by this court, that George Edwards, curator of the succession of Edward S. Bodett, deceased, do have and recover judgment against the defendants, William Lees and Maxwell Felton, in solido, for the sum of three hundred and seventeen dollars and fifty cents, with legal interest thereon from the 10th day of April, 1855, until paid; the plaintiff and appellee paying the costs of tlie appeal, and the defendants the costs of the principal demand hi the lower court, the costs of the sequestration having been disposed of by our former decree.  