dated damages, then the stipulated sum may be exacted, though the party may have sustained little or no real loss or injury.

Whether such a stipulation is to be regarded as of the one character or the other can not always (or perhaps even generally) be determined from the contract alone, but may often depend upon other facts and circumstances.

Nor is the fact that the parties have, in their contract, declared no matter in how strong terms-that it is as liquidated damages and not as a penalty at all conclusive of the question.

One general rule is that where the damage which a party may sustain by a failure to perform within the time fixed is, from the nature of the case and of the subject-matter, entirely uncertain and incapable of ascertainment, such stipulations, unless greatly in excess of any damage that may be forecasted, will be treated as liquidated damages. And yet. there are many cases clearly within this rule where it would not be so held, and where subsequent facts might require a construction different from that which would be given if the contract alone were looked at.

A case frequently referred to in the books is that of a contract to build by a fixed day a grand stand for a race course, with a fixed sum per diem as damages for delay. In such a case the damages would be uncertain and the parties might well contemplate that very considerable loss would result from delay, and as the amount would be, to a great extent, conjectural and difficult of ascertainment, the parties might fix a sum as agreed damages, and which, if not greatly in excess of any damage to be reasonably expected, a court would treat as a liquidation of the damages, and enforce the stipulation viewed only from the standpoint of the contract.

But suppose that, while the contractor has failed to complete the work in time, yet, before the stand could have been wanted or used, the races were postponed indefinitely and so that the owner had no use for the grand stand, so that, instead of being injured by the delay, he was really benefited in having less to pay for a useless stand, I suppose no one would claim that the owner could enforce a

large per diem stipulation of the contract on account of the failure to perform.

Such a case illustrates how a contract may receive one construction when considered by itself, and a different one when read in the light of facts to which it relates, even though subsequently arising, and one reason for this will be found in the general rule next referred to.

Whether the stipulation in question is considered as a penalty or as liquidating the damage, the courts proceed upon the single idea of compensating the party for the injury he has sustained by the delay; and, in cases where the amount of damage that will probably result from delay is uncertain and can not be ascertained or measured with any reasonable degree of accuracy and the parties have themselves agreed upon a sum which shall measure the damage, courts will generally give effect to the agreement, and treat it as fixing the amount of the damage. But here, too, the idea of compensation governs, and if it appears that this has been violated by fixing a sum greatly in excess of any actual or fairly presumable damage, the courts will treat the stipulation as a penalty.

Whether this principle of compensation has been thus violated may, in some cases, be determined by the contract alone, read in the light of its subject-matter and attendant facts.

In others, subsequent facts, those attending the performance of the contract and the facts existing at that time, may show that the party has, in fact, sustained little or no damage, and that the enforcement of the stipulation which was reasonable enough when made, would, by reason of these facts, be unjust, inequitable, and oppressive, and would violate this principle of compensation. The case of the grand stand above referred to will illustrate this.

Again, treated as liquidated damages, such stipulations would require their enforcement even though the portion of the work not completed was small, and might be completed by the owner at little cost, and although the damage was trifling compared with the sum fixed for it. These are some of the reasons, which incline courts to treat such stipulations

as penalties whenever they can do so without injustice to the party not in default, and to hold, in many cases, that the enforcement of such a stipulation, fair enough when made, would under the facts attending performance, violate this principle of compensation.

Applying these general considerations to the cases in hand, the latter would seem to come clearly within the rule applicable to cases where the damages that might be reasonably expected to result from delay are uncertain, and practically impossible of ascertainment and measurement, and, taking into account all the facts which affect this branch of the question, it would seem difficult to say, from the contract alone, read in the light of its subject-matter, that the per diem sum stipulated was, at the time, so in excess of any damage which might be fairly contemplated from the failure to perform within the time fixed, as to be violative of this principle of compensation.

Therefore, unless the question be affected by other facts, next referred to, and standing upon the contracts alone, with the facts existing at the time they were made, I should concur with the fair and able opinion of the Judge-AdvocateGeneral, transmitted with your note, that the stipulations in question are to be taken as fixing the amounts of the damage, and should be enforced.

But, in the letter (brief) of the counsel for Mr. Kimmel, in one of the cases submitted, it is claimed, first, that in that case, with a few trifling exceptions, the work was completed within a short period after the time fixed, except the porches outside, and that, with this exception, the building, so far as Mr. Kimmel's work was concerned, was ready for occupancy within a short period, at most, after the time fixed, and that, as to the porches, they were intended for use only in warm weather, and if completed would have been of no practical use at that season of the year, and that the institution, the Soldiers' Home, sustained no real damage by his delay; and, second, that the contract for heating the building was let to other parties, and that, by reason of their failure to complete their work, the building could not have been occupied at that season of the year, even if Mr. Kimmel had completed his work; and therefore, for this

reason also, no actual damage was sustained by Mr. Kimmel's default. And further, that by reason of these facts. inter alia, if any deduction from the contract price be made, it should be measured by the actual damage and not by the per diem stipulation.

I mention this to show also how subsequent facts may change the construction to be given to stipulations of this character.

Of course I have no knowledge of what the facts may be in regard to these claims, and as I am not authorized to give official opinions upon questions of fact, I might leave this without notice. But as the claim is made, and you must pass upon it, and as the answer to the questions you ask may be affected by the claim made, it is not deemed inappropriate that I speak generally of such considerations.

Bearing in mind that in all such cases, whether the stipulation be treated as a penalty, or as liquidated damage, the sum to be deducted or recovered for the delay is such as will compensate the party for the loss thus occasioned, it is obvious, if the facts are substantially as stated in either of the claims above referred to, that the Soldiers' Home has not sustained, by reason of Mr. Kimmel's failure, any damage approximating the aggregate of the per diem stipulation— that the principle of compensation would be violated by the enforcement of the latter, which would be a payment for damages never sustained.

What the facts may be in the other case I am not advised, and I mention the above only to advise you that while upon the contracts and their subject-matter alone, I am of opinion. that these stipulations should be regarded as fixing by agreement the measure of damage contemplated by the parties, yet if subsequent facts, not apparently in the contemplation of the parties, show that any damage sustained by the owner of either structure by the delay in performance is greatly less than the sum stipulated for, then the amount deducted should in each case be measured by the actual loss sustained, which was occasioned by the default, in this respect, of that contractor. Otherwise, the amounts stipulated should in each case be deducted from the contract price, if so much remains unpaid.

The answer to your second question depends upon the answer to the first. If, under the general principles above stated, and the facts as you shall find them, the sum to be deducted is measured by the damage actually sustained, the Board of Commissioners of the Soldiers' Home have ample authority to so do. It is only what a court would compel them to do under such circumstances.

I return herewith the papers transmitted by you.

Respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

PORTO RICO-EXHORTO OR LETTER ROGATORY.

There is no law Federal or State, which requires or authorizes any court of New York to comply with an exhorto or letter rogatory issued by the tribunal of the district of San Juan, Porto Rico, to the judge, tribunal, or court of justice in New York, requesting the latter to order certain persons in that State to appear as defendants in an action instituted in said tribunal.

Such action would be foreign to the fundamental principles and practice of our State and Federal courts.

DEPARTMENT OF JUSTICE,

May 7, 1900. SIR: I have the honor to acknowledge receipt, "for the necessary action," of your reference, dated the 30th ultimo, of two legal papers intended to be served upon Dona Dolores Ros y Rivera and Dona Josefina Ros y Rivera, living in New York City, in order to cause them to appear as defendants in a suit instituted by Don Antero Tarazona y Agredo in the tribunal of the district of San Juan in Porto Rico.

These cedulas of citation accompany what may be called a letter rogatory from that tribunal to the judge, tribunal, or court of justice in New York which may be the proper one or have jurisdiction, asking that court for its cooperation and aid to require a compliance with the order of the court of the district of San Juan; that is to say, to order Dona Dolores and Dona Josefina, living in New York, to