¶1But the Court, (nem. con.) stopped Mr. Key and Mr. Redin for the defendant and decided, and so instructed the jury, that the said sum of $2000 was to be considered as a penalty, and not as stated damages; and that the jury, in the assessment of damages, ought to be guided, not by the said sum as stated damages, but the actual damage proved by the plaintiff to have been sustained by him from the breach of the said contract.
¶2And the plaintiff, having given notice, before the 1st of May, 1824, to the defendant to deliver the 2000 perches of Rip-Rap stone mentioned in the contract, claimed damages to be assessed by the jury, as for 3000 perches of such stone, after deducting the quantity actually delivered.
¶3But the Court (nem. con.) decided, and so instructed the jury that the said 2000 perches of Rip-Rap stone included the preceding 1000 perches, and constituted the whole quantity of such stone which the defendant had stipulated, by the said contract, to deliver.
¶4The defendant then offered to prove in mitigation of damages, and in contradiction of the plaintiff’s evidence, that late in September or early in October, 1824, he requested of the plaintiff an extension of the time for the delivery of the stone; which the plaintiff refused, saying that he had prepared himself to deliver the balance of stone, in case of the defendant’s failure; to the admission of which evidence the plaintiff objected, but the Court, (Morsell, J., contra,) admitted the same.
¶5Verdict for the plaintiff, $100. Bills of exception were taken, but no writ of error was issued.