Joseph McKenna

“ It may be said that a provision for liquidated damages is a declaration by the parties of the fact of damage from delay in the performance of the work contracted for and the measure of its amount, it not being susceptible of exact ascertainment. United States v. Bethlehem Steel Co. supra, is adduced for the application of the proposition to the case at bar. The contract in that case was entered into when war was imminent with Spain, and was for the delivery of gun carriages. ”

“ Undoubtedly parties may agree that time shall be of the essence of their contract, and, the proper legal conditions existing, may stipulate for damages and the measure of them, but they may subsequently change their views and requirements, and consider that performance within the stipulated time is unimportant. ”

“ On April 1, 1904, or ninety-five days, exclusive of Sundays and holidays, after the time fixed in the contract, the Quartermaster General directed the depot quartermaster at New York to make final payment for the steamer, retaining, however, the 10 per cent to make good any defects there might be in the material and workmanship. On July 13, 1904, the entire sum stipulated to be paid by the government was paid without any deduction whatever. ”