delivered the opinion of the court.
The only grounds urged by the learned counsel for appellant for a reversal of the judgement are:
1st. The defendant did, within ninety days from July 16, 1892, proceed to build the building in the contract and declaration mentioned; and the court should have found the issue presented by the third plea in favor of defendant.
2d. The finding should have been for the defendant on the fourth and fifth pleas, as the evidence shows that Clark & Findlay were accorded all the rights and privileges contemplated by the agreement of July 16, 1892.
3d. The delay in commencing the actual construction of the building beyond the period of ninety days, was occasioned by the plaintiff.
4th. This suit is in reality a suit to enforce a penalty, and under the evidence plaintiff was entitled to recover (if ■ at all) only nominal damages.
The first, second and third of these contentions are all based upon pleas which set up as a defense that the building was actually commenced within the ninety days specified by the contract. The evidence establishes the fact that the construction of the building was not begun until after the expiration of the ninety days, the excavation having been first commenced at least five or six days after the expiration of the ninety days. We are of opinion that the trial court correctly found that the building was not commenced by appellant when surveys were made or bids received upon plans and specifications, or when certain brick contracted for by appellee was delivered.
The remaining contention is that the judgment obtained is in the nature of a recovery of a penalty, and that therefore the recovery can be sustained only for damages shown, and that none are shown, or for nominal damages. This contention invites us to ignore the fact that the agreement of July 16, 1892, was made upon a valid consideration moving from appellee to appellant, viz., the relinquishment of all of appellee’s claim to an interest in a joint real estate venture. The spirit and meaning of the agreement is just as expressed in the sixth clause, that if for any reason whatever appellee did not get the contract for the contemplated building, he was to be paid the $500, not as a penalty for breach of the agreement, but as the consideration for relinquishing his interest in the joint venture. In other words, appellee sold his interest for $500, but agreed to waive the payment of it in the event that he took the building contract. No obligation is imposed upon appellee by the terms of the agreement to take the building contract upon terms specified or upon reasonable terms. He did not in fact get the contract, for what reason matters not, as expressed in the sixth clause of the agreement, and not having received the contract nor the $500, the learned trial court properly gave judgment for that amount. Some criticism might be made of the pleadings by which the issue was reached, but as substantial justice has been done, and as no other result could be properly had upon another trial, we are not disposed to reverse the judgment merely to allow the pleadings to be reformed. Upon the issue which was tendered and accepted, viz., that the appellant did not proceed to build ivitliin ninety days, the evidence sustains the recovery.
The judgment is affirmed.