#### Sigmund Glaser, Defendant in Error, v. Thomas Schrader, Plaintiff in Error.

Gen. No. 20,257.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Affirmed.

Opinion filed April 28, 1915.

Rehearing denied May 12, 1915.

Statement of the Case.

Action by Sigmund Glaser in the Municipal Court of Chicago against Thomas Schrader to recover one thousand dollars as liquidated damages for the alleged breach by the defendant of a written contract.

The "contract was as follows:

*479“State of Illinois!

County of Cook.] ss"

Agreement made this 25th day of October, A. D. 1910, by and between Sigmund Glaser, formerly of Philadelphia, now of Chicago, party of the first part, and Thomas Schrader, of Chicago, Illinois, party of the second part, Witnesseth :

“That, "Whereas, party of the first part has purchased from party of the second part a certain business located at Number 366 E. 43rd Street in Chicago, Illinois, said business being a retail candy, ice cream and confectionery business, for a consideration of Two Thousand Dollars ($2,000.00); and

“Whereas, a further consideration for the purchase of said business by the party of the first part from the party of the second part was the agreement on part of the party of the second part not to engage in the same or a similar business for a period of ten (10) years within a certain locality in which the said business is located.

“Now, Therefore, in consideration of the covenants and agreements herein contained, and the payment of One Dollar ($1.00) from the party of the first part to party of the second part, receipt whereof is hereby acknowledged, party of the second part hereby agrees that he will not for a period of ten years from this date, by himself or in conjunction with others, directly or indirectly, either as manager, agent, owner or employe, engage in the retail ice cream, candy and confectionery business in the City of Chicago, Cook County, Illinois, within a radius of eight (8) blocks, the central point of which shall be Number 366 East 43rd street in said city, and the said party of the second part hereby agrees that in case he violates the terms or spirit of this agreement, that party of the first part shall be entitled to the sum of One Thousand Dollars ($1,000.00) as liquidated damages, which party of the second part agrees to pay in case of such viola-' tion.

“It is hereby mutually agreed that the store con*480ducted by party of the second part at number 363 E. 47th Street in Chicago, Illinois, shall be excepted from the prohibited territory above described.

Abstract of the Decision.

Damages, § 88 * —when contract provides for liquidated damages. Stipulation in a contract providing for the payment of one thousand dollars as liquidated damages, in the event of a breach by the defendant of a contract not to engage in business within a certain distance from a particular location for a stipulated period, construed as providing for liquidated damages and not a penalty.

“Witness the hands and seals of the parties hereto, this 25th day of October, A. D. 1910.

Sigmund Glasee (Seal) Thomas Schbadeb (Seal).”

From a judgment for plaintiff for one thousand dollars, rendered on a directed verdict, defendant brings error.

William A. Jennings, for plaintiff in error.

Haase & Howard, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mb. Presiding Justice Baume

delivered the opinion of the court.