equipment for the assembly to Lawton, sending his platform manager and assistant manager there, but defendants declined to co-operate with or assist them in any way, objecting, as the assistant manager testified, to their going ahead or putting up their tent. They were followed by the entertainers, or so-called talent, in time for the opening, who remained during the balance of the appointed week, and the organization remained there ready to fulfil, with defendants' assistance, as was claimed, during the time arranged for under the contract. Jones testified, against defendants' objection, that the persons were regularly in his employ at so much per week, that he stood ready and offered to fully perform the contract on his part, and his total expenses of booking the town of Lawton, advertising, freight, fare and costs for the assembly week were $438.71, all of which he paid out.

The trial court held the contract between the parties bilateral and not revocable at the option of either party, that it was not made by Jones under an assumed or fictitious name in violation of the statute upon that subject.

The questions of fraudulent representation, compliance with the contract on plaintiff's part so far as permitted by defendants and tender of performance, were tried out as issues of fact and submitted to the jury with full instructions. Defendants made seasonable objections, motions, etc., to save all questions raised, and when the court held it a case for the jury upon the issues above indicated, propounded two special questions for their determination which, with their answers, are as follows:

"(1) Did the plaintiff tender to the defendants before he received notice of cancellation about July 16th, a program which consisted of vocal and instrumental musical numbers, popular and prohibition lectures and other entertainments such as are usually found in Chautauqua programs before the contract was renounced by the defendants?

"Answer. Yes.

"(2) Did the plaintiff tender to and furnish the defendants at the village of Lawton a Chautauqua program consisting of vocal and instrumental musical numbers, popular and prohibition lectures and other entertainments such as are usually found in Chautauqua programs?

"Answer. Yes."

Although the court admitted evidence of plaintiff's expenses in preparing for and attempting to carry out the contract on his part "subject to instruction later on," defendants having objected "for reasons heretofore stated" and because "we are not responsible for any expenses after this contract was rescinded," in construing the contract and instructing the jury the court held that there could be no recovery beyond defendants' guaranty as specified in the agreement, which expressly provides that the "parties of the second part agree to pay unto the party of the first part for the purpose of securing the Chautauqua assembly the sum of two hundred and fifty dollars ($250) as a guarantee," directing the jury that if they found in favor of plaintiff upon the issues submitted to them he would be entitled to recover, and they should award him as damages that amount less the $25 previously paid.

It is contended for defendants that this was error because the provision quoted is directed to anticipated performance on both sides, as shown by a later provision that the second parties "further agree that the advance sale of season tickets shall not fall below $250 which shall form the guarantee above named," and it is said "there was no guaranty that defendants would pay any stipulated sum if they repudiated or renounced the contract, so that the plaintiff is relegated to its (his) remedy for a breach of the contract" to establish by his proofs as an issue of fact for the jury his damages under appropriate rules of

law, in relation to which authorities are cited. With this view we are unable to concur. Undoubtedly it was anticipated there would be performance of all the mutual obligations assumed by the contract on both sides, but the express agreement by defendants to pay a specified sum of a certainty, as a manifest consideration and inducement for the opposite party to make the contract is only emphasized in view of the subject-matter and nature of the contract by the provision that selling season tickets for the entertainment to that amount will operate and be accepted as fulfillment of the guaranty, in further explanation of which the contract provides for a division of proceeds between the parties after plaintiff has realized a certain sum in excess of the $250. The word "guarantee" in the connection used is not a technical application and only signifies a warranty or unqualified and emphasized promise to pay. This is clearly of that class of contracts where the actual damages for a breach, or unlawful repudiation, even aside from gains prevented, are difficult to ascertain and uncertain in their nature. In Crisdee v. Bolton, 3 C. & P. 240, Best, C. J., said of liquidated damages in lieu of perform

ance:

"I think that the parties to contracts, from knowing exactly their own situations and objects, can better appreciate the consequences of their failing to obtain those objects than either judges or juries. Whether a contract be under seal or not if it clearly states what shall be paid by the party who breaks it to the party to whose prejudice it is broken, the verdict in an action for the breach of it should be for the stipulated sum."

And our early case of Jaquith v. Hudson, 5 Mich. 123, 137 (cited in Whiting v. Village of New Baltimore, 127 Mich. 66), contains the settled rule thus clearly stated, Justice CHRISTIANCY speaking for the court:

"There are great numbers of cases, where, from the

nature of the contract and the subject-matter of the stipulation, for the breach of which the sum is provided, it is apparent to the court that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty, by reference to any pecuniary standard, and where the parties themselves are more intimately acquainted with all the peculiar circumstances, and therefore better able to compute the actual or probable damages, than courts or juries, from any evidence which can be brought before them. In all such cases, the law permits the parties to ascertain for themselves, and to provide in the contract itself, the amount of the damages which shall be paid for the breach."

It cannot be said in view of the nature of this contract and the matter to which it relates that the sum unconditionally agreed to be paid "for the purpose of securing the Chautauqua assembly" is so grossly in excess of possible or actual damages as to lose sight of the element of compensation and stand purely as a penalty. As evidenced by the entire agreement, in the light of the circumstances under which it was made as disclosed by the testimony, the provision in question is to be construed to have intended the stipulated amount to be as liquidated damages in case of nonperformance by defendants.

While numerous assignments of error not directly reviewed here are launched against the rulings of the court during the progress of the trial and charge to the jury, they are for the most part, in essentials, contingent upon and disposed of by the controlling questions of law which have been discussed and passed upon, or by the answer to special questions and verdict of the jury. Though not reviewed in detail they have been considered and the conclusion reached that they present no prejudicial errors demanding reversal. The judgment is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

INDEX.

ABATEMENT OF TAX-See MUNICIPAL CORPORATIONS (16).

ABSOLUTE DIVORCE-See DIVORCE.

ABSTRACTS-See EVIDENCE (12); SPECIFIC PERFORMANCE (3); VENDOR AND PURCHASER (5-9).

ABSURDITY-See MUNICIPAL CORPORATIONS (1).

ABUSE OF PROCESS-See MALICIOUS PROSECUTION (5). ACCEPTANCE OF WORKMEN'S COMPENSATION ACT-See MASTER AND SERVANT (1, 3).

"ACCIDENT"-See MASTER AND SERVANT (14, 16, 17, 25-28, 45). ACCORD AND SATISFACTION-See ESTATES OF DECEDENTS (3). ACCOUNTING See CONTRACTS (15); EQUITY (5, 6); ESTATES OF DECEDENTS (3); EXECUTORS AND ADMINISTRATORS (3). ACQUIESCENCE- See ADVERSE POSSESSION (5); CONTRACTS (15); FRAUD (3).

ACTION-See AUTOMOBILES (2); MASTER AND SERVANT (10). ACTIONABLE NEGLIGENCE-See MASTER AND SERVANT (3). ACTS OF DOMINION-See CONVERSION (3).

ADEQUATE REMEDY AT LAW-See EQUITY (6); EXECUTION (2); EXECUTORS AND ADMINISTRATORS (3).

ADMISSIBILITY-See EVIDENCE (1, 3, 6, 8, 11, 12, 14).

ADMISSIONS-See APPEAL AND ERROR (5); CONTRACTS (15); EVIDENCE (10, 13); REPLEVIN (2).

ADULTERY-See WITNESSES (1-3).

ADVERSE POSSESSION.

1. A right to lay a drain and convey surface water upon the lands of another, beginning in favor, was permissive, and no rights by adverse user could arise thereunder. Voorhies v. Pratt, 91.

2. Where the permissive user was extinguished by sale of the premises, and thereafter defendant claimed the right to maintain the drain, and the evidence shows that he

200-Mich.-45.