1, 2, 3. In the argument here, counsel did not insist on an examination of the errors assigned on the charge of the court or on the court’s refusal to charge. The question discussed was whether, upon the evidence, including a proper construction of the contract, the verdict could be maintained. We have announced our views very fully in the head-notes. We have no 'doubt that the contract fixes the agreed compensation for the whole work at $475,000 00 in bonds. No final estimate is provided for. There were to be monthly estimates as the work progressed, but when all was finished then payment was to be completed in bonds, deducting those previously paid on the estimates. What was earned after the last monthly estimate was of no consequence, and no provision was made for ascertaining the amount. As the monthly estimates were provisional, so was the agreed value at which bonds were to be counted when advanced on those estimates. Whether the bonds were worth more or less than the agreed rate, was quite immaterial, if they had all been paid when due; but any failure to pay then entitled the contractors to recover the actual value of the bonds which ought to have been paid, together with interest.
4. There is more difficulty in settling the true construction of the contract as between penalty and stipulated damages. Such questions are among the most vexed in the law. Notwithstanding the hundreds, or perhaps, thousands of cases to *338be found on the subject, each case must depend, in a great degree, on its own facts; and we think the facts of the present case give it a closer alliance with penalty than with stipulated damages: 11 How., 461; 10 Mich., 188; 9 Cal., 584; 38 Barb., 643; 1 McMullen, 106; 2 Ala., 425; 7 Pa. St., 470. Under the conduct of other authorities, such as 27 Eng. L. & E., 61, it might not be impossible to rule differently from what we do, but we abide by our deeper and better convictions, influenced somewhat by the special matters to which attention is called in the 4th herd-note. The only complaint of the work was, that it was not finished in time. It was accepted, and the benefit of it was taken by the railroad company. The action is in the statutory form, and is so framed that the rule will apply to it which gives compensation, even where there has been a failure to perform strictly the terms of the contract: Addison on Contracts, 447-8; 13 Metcalf, 42; 2 Smith’s Leading Cases, 14—Cutter vs. Powell, and notes. It was a question for the jury how much the value of the work, as compared with the contract price, was lessened by delay in completing it; and it was also for them to determine who occasioned the delay. We cannot say that the evidence on these points required a different verdict from that rendered.
5. The verdict is, however, unsupported by the requisite evidence as to the value of the bonds. It is clear that the jury counted them at eighty cents in the dollar, but that was because they were so priced in applying them to the monthly estimates. When applied to the main contract they should be counted at their real value, as we have indicated above. There is no dispute that the unpaid bonds were worth as much as seventy cents in the dollar; and this gives us a basis upon which to order a new trial, on terms. We consequently reverse the judgment, and direct that a new trial be had unless the plaintiffs below shall write off, so as to reduce their recovery by the difference between the unpaid bonds at seventy cents and at eighty cents; and if this shall be done, let the judgment, thus reduced, stand affirmed.