Ayres vs. E. & J. Pease, 12 Wend. 393

By the Court, Sutherland, J. The plea is clearly bad, both in form and substance. It is a plea of tender before suit brought, but it mates no profert in curia of the money tendered, and it is pleaded in bar of the action, instead of in bar of damages beyond the sum tendered. These objections to the plea are both fatal. 2 Chitty’s Pl. 432, 498. 1 Ld. Raym. 254.

Indeed the plea was admitted by the defendant’s counsel to be bad in these and other respects ; but he contended that, by the true construction of the contract, the defendants were at liberty to abandon it by paying $25, the sum agreed on as stipulated damages, and restoring the possession of the premises mentioned therein to the plaintiff; that the plaintiff’s action therefore should have been brought for those liquidated damages, and not for a general breach of covenant; and that the declaration is therefore bad. This does not appear to me to be the natural or legal import of the covenant.

The inquiry in such cases always is, what was the intention of the parties ? There is nothing in this case which authorizes us to say that it was in the contemplation of the parties, that the defendants might relieve themselves from their covenant to pay t]le pr¡ce 0f the ¡and, by paying the sum agreed upon as stipulated damages, and surrendering possession. Judgment for plaintiff.