This is an action to foreclose a mechanic’s lien. The plaintiff furnished material to the contractor for the erection of a building for the owner. The contractor continued work until he had received three instalhnents, and there remained unpaid on his contract the sum of $1,000. ITe abandoned the work on the 18th day of November, 1876, soon after he received the last payment, but he had then expended considerable sums of money in procuring articles to be used in the completion of the building, so that it only cost the owner $485.40 to finish it after the contractor left off work. On the 24th day of November, 1876, the owner gave notice to the contractor, under a clause in the building contract authorizing him so to do, that unless the contractor proceeded with the work he should himself complete the building and charge him with the outlay necessary therefor; and the owner did so finish the building, at the expense mentioned above.
The building was thus completed, and there remained unexpended and unpaid of the contract price $514.60. This money was then due and payable to the contractor. The plaintiffs filed their notice of lien on the second day of December, 1876, and that gave them the right to recover all that was then due to the contractor and that became due thereafter. They have recovered the balance of the $1,000 which remained unexpended after the completion of the building; and so far there is no difficulty in sustaining the recovery.
Another point is raised by the appellant, which was ruled against hirn on the trial. The written contract between the contractor and owner for the erection of the building fixed the first day of November, 1876, as the time for the completion of the building, and in relation thereto stipulated, that should the contractor fail to finish the work at or before the time agreed upon, he should pay to the *377owner tbe sum of five dollars for each and every day thereafter the said work should remain unfinished, as and for liquidated damages. Assuming that the sum of five dollars a day is to be considered as liquidated damages and not as a penalty, it was inserted in the contract for the indemnity of the owner against the damage he might sustain by reason of the failure of the contractor to finish the building at the time mentioned. He might have relied upon this for his security and left the building incomplete. Instead of doing that he proceeded under the other provision of the contract and finished the building. We think, therefore, he must be held to have waived the penalty which was imposed for the failure to complete the •building in time.
We have thus examined the two questions which control the case, and we think, upon the whole, the judgment should be affirmed, with costs.
Present — ■ Babnabd, P. J., Gilbebt and HyKMAN, JJ.Judgment and order denying new trial affirmed, with costs.