“So long as the parties intended the fixed amount to compensate, rather than punish, the provision will be upheld regardless of the fact that the fixed amount turns out to be more than, or less than, the actual damages suffered.” Luepke, supra, at 325 (citing Arnett v. Keith, 582 S.W.2d 363, 365–66 (Mo.App.1979)). Moreover, while Diffley involved damages for the breach of a collective bargaining agreement, this case involves damages for breach of a lease.
"So long as the parties intended the fixed amount to compensate, rather than punish, the provision will be upheld regardless of the fact that the fixed amount turns out to be more than, or less than, the actual damages suffered." Luepke, supra, at 325 (citing Arnett v. Keith, 582 S.W.2d 363, 365-66 (Mo. App. 1979)). Moreover, while Diffley involved damages for the breach of a collective bargaining agreement, this case involves damages for breach of a lease.
Warstler, 859 S.W.2d at 165[8] (citing Germany, 677 S.W.2d at 388[4]). See also Arnett v. Keith, 582 S.W.2d 363 (Mo.App. 1979). This rule of law has developed in order to protect against the wrong of duplicating damages.
The contract in this case only provides for liquidated damages. Since the validity of the liquidated damages provision is not in dispute, the stipulated amount controls as to the measure of damages and recovery is limited to that amount, even though the actual loss may be greater or less. Arnett v. Keith, 582 S.W.2d 363, 365-66 (Mo.App 1979). As such, the Warstlers are entitled only to the $2,000 earnest money deposit that was specified as liquidated damages in the contract.
It was contended the Moores could not sue for damages for breach of contract and at the same time have the benefit of liquidated damages. In Arnett v. Keith, 582 S.W.2d 363, 365-66[6, 7] (Mo.App. 1979), the court stated: "If a provision for liquidated damages is valid, the stipulated amount forms the measure of damages in case of a breach, and recovery must be for that amount, even though the actual loss may be greater or less." Applying this rule to the facts in this case shows that Dahlberg has at least the arguable defense that the Moores' only remedy is to retain the amount paid as liquidated damages.
Since the liquidated damages clause is valid, the amount stipulated in the clause should be the measure of damages. E.g., Arnett v. Keith, 582 S.W.2d 363, 365-66 (Mo.App. 1979). However, instead of allowing defendant to retain the $5,000 as liquidated damages, the trial court limited defendant to that portion of liquidated damages that it actually incurred.
We neither approve or disapprove of any rulings of the trial court on the matter of damages. The trial court and parties may find some assistance by reference to Arnett v. Keith, 582 S.W.2d 363, 365-366 (Mo.App. 1979); Highland Inns Corp. v. American Landmark Corp., 650 S.W.2d 667, 674 (Mo.App. 1983). On the issue of interest see Twin River Construction Co. v. Public Water Dist. No. 6, 653 S.W.2d 682, 695 (Mo.App. 1983).
The grant or denial of the continuance rests largely in the discretion of the trial court. Arnett v. Keith, 582 S.W.2d 363, 365 (Mo.App. 1979). In support of his motion for a continuance, Cooper argued that he could not locate witnesses and serve subpoenas because he was imprisoned.
In addition, liquidated and actual damages may not be awarded as compensation for the same injury. Twin River Const. Co. v. Public Water Dist., 653 S.W.2d 682, 694 (Mo.App. 1983); Arnett v. Keith, 582 S.W.2d 363, 365-366 (Mo.App. 1979). The trial court's award of the additional $5,700 for rent gave the Germanys a double recovery that they were not entitled to receive.
In that case, our Supreme Court allowed set-offs of both actual and liquidated damages against the price of a construction contract. It is true that liquidated and actual damages may not be awarded as compensation for the same injury. See Arnett v. Keith, 582 S.W.2d 363, 365 (Mo.App. 1979). But "the vice to be guarded against is a duplication of damages."