The plaintiff’s declaration contains two counts, but as no question is now raised as to the finding of the referee upon the second count, it is not necessary further to refer to it. The only question argued to us is, as to the correctness of the finding of the referee that the plaintiff could not maintain hia first count because he had waived the right to insist upon the *53penalty of ten dollars a day after July 1, 1869, which the defendant agreed to pay if the house sold by him to the plaintiff was not completed by that late. The plaintiff claims that as matter of law, upon the facts found by the referee, he is entitled to judgment for the amount of ten dollars a day from July 1, 1869, to the date of his writ, as liquidated damages.

To understand this question, it is necessary to refer to the contract between the parties, and the facts proved. On April 14, 1869, the defendant was engaged in the erection of a block of eleven houses in Boston; on that day he conveyed to the plaintiff one of said houses, at an agreed price of $6000, over and above a mortgage which was upon it, and the parties then entered into the contract upon which this suit is brought. By it the plaintiff agreed, in payment for the house conveyed to him, to furnish marble work for the eleven houses to the amount of $6000, according to certain specifications or schedule referred to; and the defendant agreed that, as the house conveyed by him, as above stated, was unfinished, he would finish it on or before July 1, 1869, and if not so finished that he would “ forfeit and pay to said Leighton, or credit him towards the balance of the purchase money of said house, instead of marble work to be furnished by him under this schedule made part of this agreement, the sum of ten dollars per day for each day said house thereafter remains unfinished.” On the day of the date of the contract, and as a part of the same transaction, Leighton gave to Meserve a mortgage of the house conveyed to him as above stated, to secure the furnishing of the marble work for five of the said eleven houses, in accordance with the conditions of the contract. The contract contained the provision, that said mortgage was to be discharged upon the faithful performance by the said Leighton of his undertaking to furnish marble work, as aforesaid, for said five houses, provided, however, that if the said Meserve shall have fully completed, on or before July 1, 1869, the house conveyed by him to said Leighton, then the said Leighton shall, before the discharge of said mortgage, give a .satisfactory bond in the sum of $3000, “ conditioned to secure the furnishing by said Leighton in accordance with his contract or schedule of marble work in full of said sum of $6000, so far as the same may remain unpaid, by marble work furnished for the aforesaid five houses of said block of eleven, *54and by such forfeit money, if any, as may accrue from said Me-serve.”

Under this contract the parties went on until August 5,1869, Leighton furnishing marble work for the five houses, and Meserve working in the completion of the house sold by him; but at that time the marble work for the five houses was not entirely furnished by Leighton, nor was the house fully completed by Me-serve. At that date the parties entered into an arrangement by which the mortgage was discharged, and Leighton gave the bond, of which a copy is annexed to the referee’s report. The referee finds that “ this bond was given in pursuance of the contract as a security therein provided for.” On or about the same day, the defendant paid $500 towards the first mortgage on the house, and the plaintiff gave another mortgage for $3500 to another party not the defendant. It is not an unreasonable inference from these facts, that the understanding was that the plaintiff did not insist upon the provision for the forfeiture of ten dollars a day, but, in making the arrangement of the 5th of August, waived it. But whether such was the intention and understanding of the parties was' a question of fact, and the referee having found that there was such waiver, the plaintiff is bound by the finding, and has no right of exception. The plaintiff argues that the referee ruled, as matter of law, that the facts showed a waiver. We do not so understand the report.

The last clause, added at the request of the plaintiff, — “ If it be the opinion of the court that, as matter of law, the plaintiff is entitled, upon the foregoing facts, to recover the penalty of $10 a day as liquidated damages, then the defendant owes the plaintiff $4675,” — clearly shows that the referee understood that his finding was to be conclusive, unless the court should be of opinion that, as matter of law, upon the facts reported, the plaintiff was entitled to recover the $10 a day as liquidated damages.

No objection is now made to the finding of the referee upon the second count. The ruling of the Superior Court, accepting the award and ordering judgment thereon, was therefore correct.

Judgment affirmed.