Page:North Dakota Reports (vol. 48).pdf/245

 Per Curiam Opinion.

H. L. Halliday, and J. A. Miller, for appellant.

“The term ‘liquidated damages’ is used in reference to the breach of a contract or non-performance of duty as expressing a fixed sum which is agreed upon between the parties as the ascertained damage which one is to receive and the other pay because of default.” U.S. v. U. S. Fidelity etc. Co. 151 Fed. 534, (14 C. J. 714).

“The distinction between a penalty and a provision for liquidated damages is that a penalty is in effect a security for performance, while a provision for liquidated damages is for a sum to be paid in lieu of performance.” 14 C. J. 933.

“A contract for a penalty is an agreement to pay a stipulated sum in case of default intended to coerce performance, to punish default, or to secure payment of actual damages.”” Muehlebach v. Missouri etc. Ry. Co. (Mo.) 148 S. W. 453.

In the following cases the courts have defined what contracts are void as providing penalties or liquidated damages. DeGraff, Vrieling & Co. v. Wickham, 52 N. W. 503; Crawford v. Heatwole (Va.) 34 L. R.A. | (N.S.) 587 and note; Eadler v. Silverstone (Wash.) 34 L. R. A. (N. S.) 4 and note; Bilz v. Powell (Col.) 38 L. R. A. (N. S.) 847 and note; Barnes v. Clement (S. D.) 66 N. W. 810.

W. H. Stutsman, for respondents.

Section 7166 prescribes that the detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years last preceding the commencement of the action, and costs, if any, of recovering the possession and therefore any attempt to stipulate the damages for the wrongful occupation of land must be void. Utley v. Dunning, 161 N. W. 813, and Barnes v. Clement, 66 N. W. 810. (South Dakota cases).

PER CURIAM. This is an action to recover on a written agreement in the form of a bond executed by the defendant, Missouri Slope Land & Investment Company, as principals and the defendants, A. L. Martin and Mary J. McGillivray, as sureties. The written instrument upon which this action is brought was executed under the following circumstances:

About the year 1906 the defendant Missouri Slope Land