Where it is doubtful from the language of the instrument whether the stipulation was intended as a penalty or as liquidated dam ages 3 C. & P. 240; Bagley v. Peddle, 5 Sandf. (N. Y.) 192; Low v. Nolte, 16 111. 475.
Where the agreement was evidently made for the attainment of another object or pur pose, to which the stipulation is wholly col lateral ; Wood v. Partridge, 11 Mass. 488; 1 Bro. C. C. 418; McCann v. City of Albany, 11 App. Div. 378, 42 N. Y. Suit. 94.
Where the agreement imposes several, dis tinct duties, or obligations of different de grees of importance, and yet the same sum is named as damages for a breach of either indifferently ; 7 Scott 364; Bagley v. Peddle, 5 Sandf. (N. Y.) 192; Wilhelm v. Eaves, 21 Or. 194, 27 Pac. 1053, 14 L. R. A. 297; Trow er v. Elder, 77 Ill. 452 ; Carter v. Strom, 41 Minn. 522, 43 N. W. 394; Lyman v. Bab cock, 40 Wis. 503. But see Cotheal v. Tal mage, 9 N. Y. 551, 61 Am. Dec. 716; Trower v. Elder, 77 III. 452 ; L. R. 4 Ch. Div. 731; and see 19 Centr. L. J. 282, 302, where many authorities are collected.
Where the agreement is not under seal, and the damages are capable of being cer tainly known and estimated ; 2 B. & Ald. 704 ; 6 B. & C. 216 ; Graham v. Bickham, 4 Dall. (U. S.) 150, 1 L. Ed. 778; Spencer v. Tilden, 5 Cow. (N. Y.) 144; Squires v. El wood, 33 Neb. 126, 49 N. W. 939. See Sco field v. Tompkins, 95 111. 190, 35 Am. Rep. 160 ; Grand Tower Min. Mfg. & Transp. Co. v. Phillips, 23 Wall. (U. S.) 471, 23 L. Ed. 71.
Where the instrument provides that a larger sum shall be paid upon default to pay a lesser sum in the manner prescribed; Bagley v. Peddle, 5 Sandf. (N. Y.) 192; Beale v. Hayes, id. 640 ; Peine v. Weber, 47 Ill. 41; Haldeman v. Jennings, 14 Ark. 329 ; 2 B. & P. 346. This case is said to be con sidered as settling the doctrine of liquidated damages in England ; 1 Sedgw. Dam. § 398 ; and it is cited approvingly in 6 Ves. 815, and the doctrine applied in 6 Biugh. 141, 147. In the latter case, Tindal, C. J., said, "that a very large sum should become immediately payable in consequence of the non-payment of a very small sum, and that the former should not be considered as a penalty, ap pears to be a contradiction in terms ; the case being precisely that in which courts of equity have always relieved, and against which courts of law have in modern times endeavored to relieve by directing juries to assess the real 'damages sustained by the breach of the agreement." See also 12 U.
C. C. P. 9 ; White v. Arleth, 1 Bond 319, Fed. Cas. No. 17,536.
So where the stipulation was in respect of a matter certain in value, as the payment of a debt or liquidated money demand, and the sum fixed upon is greater than the debt or demand; L. R. 8 Ch. 1022. If a debt be secured by a stipulation that in case of its not being paid at the appointed time, a larg er sum shall become payable, the stipulation for the larger sum is in the nature of a pen alty ; L. R. 4 H. L. 1; Leake, Contr. 3d ed. 939.
Where a sum named is evidently to evade usury laws or statutory prohibitions, it will be treated as a penalty ; Davis v. Freeman, 10 Mich. 188; Clark v. Kay, 26 Ga. 403; but see Gould v. Bishop Hill Colony, 35 Ill. 324.
Where, by a clause in a building contract, the builder, in default of the completion of the work at a certain time, agreed 'to pay the owner of the property a stipulated sum for every day the building was delayed after that time, it was held to be a penalty and not an agreement to pay liquidated damages ; Cochran v. Ry. Co., 113 Mo. 359, 21 S. W. 6 ; but see Monmouth Park Ass'n v. Iron Works, 55 N. J. L. 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626. Nilson v. Jones boro, 57 Ark. 168, 20 S. W. 1093.
The plaintiff as well as the defendant may show that a stipulated sum is to be consider ed a penalty not liquidated damages, and he may prove the actual damages even if greater than the penalty ; Noyes v. Phillips, 60 N. Y. 408.
The stipulation will be sustained as liqui dated damages in the following cases : Where the agreement is 'of such a nature that the damages are uncertain, and are not capable of being ascertained by any satis factory and known rule ; 13 M. & W. 702 ; Leary v. Laflin, 101 Mass. 334 ; Esmond v. Van Ben'schoten, 12 Barb. (N. Y.) 366; L. R. 15 Eq. 36 ; Feeble v. Keeble, 85 Ala. 552, 5 South. 149 ; Tennessee Mfg. Co. v. James, 91 Tenn. 154, 18 S. W. 262, 15 L. R. A. 211, 30 Am. St. Rep. 865; Yeriner v. Hammond, 36 Wis. 277 ; Gobble v. Linder, 76 Ill. 157; Mead v. Wheeler, 13 N. H. 351; Malone v. Philadelphia, 147 Pa. 416, 23 Atl. 628.