delivered the opinion of the court.

This is an action instituted upon a contract for building. *312The defendant admits the contract, but claims various offsets for work not done by the plaintiff, and also damages for the non-delivery of the building at the time stipulated. The District Court gave judgment in favor of the plaintiff, for the balance claimed by him, and the defendant appealed.

The only question upon which the judgment is attempted to be reversed, arises from this clause found in the contract.

“The said undertaker, (meaning the plaintiff,) binds himself to deliver said buildings finished and complete, keys in hand, three months after the granite, which is to be furnished by the said Jonau, shall have been put up, and in case of delay on his part, to pay as a penalty to the said Jonau, his heirs and assigns, the sum of thirty dollars for each and every day of delay.”

The contract made for the putting up of the granite between the defendant and one Richards, is also in evidence. It embraces posts and sills for the basement story, together with sills and lintels for all the windows in front, being seventy-five in number. Richards engages to put up the basement story in all the month of December, 1836, the door and window sills to be set as the walls are carried up. The basement story was put up on the 7th January, 1837 ; the last window sills were set in on the 11th March following ; the plaintiff considering this epoch as the time from which the three months allowed him to complete the contract were to run, admits that he was in default from the 12th of June to 25th July, on which day the delivery took place, and he has accordingly charged himself in his account with thirty dollars per day for forty-four days. The defendant contends, that the delay of ninety days commenced on the 7th of January, when the basement story was completed, and that he is entitled to a deduction of thirty dollars per day for one hundred and nine days.

A great number of witnesses were examined in the District Court, without opposition upon the construction which should be put upon such a contract; and their testimony is contradictory; that of Richards, who furnished the granite, appears to us, from the circumstances in which he was *313placed, the most important. He says that, in his opinion, it would not have been safe to put up the building within three months after the basement story was finished; he further stated, that in some former cases, where he had put up granite for the plaintiff, there was a misunderstanding between them as to witness’s obligation to put up the window sills and lintels. In this case, all misunderstanding was intentionally avoided by a positive stipulation in the contract, that this granite, as well as the basement story, should be put up by the witness. Other witnesses state, that it would have been impossible to complete the building within the time contended for by the defendant. The putting up of the granite of seventy-five windows and doors, cannot be excluded from the contract by us, without an express reservation to that effect by the parties; we are satisfied frond all the evidence, that no such reservation was intended.

We concur in opinion with the district judge, that the three months allowed for the completion of the building commenced to run on the 11th March, 1837, after the last window sill was set. As the plaintiff has allowed the stipulated damages from that day to that of the delivery, we are dispensed from inquiring whether he was regularly put in mora; the case appears to us a hard one for him, upon his own admissions.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.