The following opinion was filed November 13, 1911:
Maeshall, J.
Did the trial court commit error in construing the contract and the first question of the special verdict? That is the vital matter to be considered. We incline to the view that it did not, and shall only briefly discuss the subject. There is really very little which can be helpfully said about it. Evidently from the trial court’s opinion, after verdict, and its instructions, it regarded the question, at the outset, the same as when it made the order complained of.
The bank purposed securing delivery of the marble for the structure so the entire work could be completed not later than the 1st day of December, 1911, if the progress of the work at the building demanded it. It is considered that the words “progress of the work at the building” refer to the particular work which was the subject of the contract, i. e. the marble work. It is hardly reasonable to suppose that it was left for *553appellant to time deliveries of marble with reference to progress of work under the mason’s contract as an entirety so that if, in its judgment, whenever there was work under such contract which could be done, so delay in delivery of marble would not work real prejudice to the mason contractors, there might be any amount of such delay. Had the parties so intended they would, doubtless, have used different language.
The work of setting the marble was an important part of the work at the building, so, in any view of the matter, whenever the mason contractors were ready to use marble, the progress of the work at the building demanded it, and failure to have marble at hand for such use was a breach of the.very letter of the agreement. In the clause “the contractor agrees to pay the owner ten dollars ($10) per 'day for each and every day the work remains unfinished after the day set for its completion,” “work” is synonymous with the same word in the preceding paragraph, including its use in the clause “if the progress of the work at the building demands it.” The day specified for completion of the job clearly refers to the marble feature subject to the demands of the progress thereof.
The bank was under obligation to provide the marble for use by the mason contractors. But it was agreed in the contract that the bank should provide all labor and material essential to the conduct of the work, not included in the contract, but that' it should be deemed to have satisfied such agreement by entering into contracts, in substantially the form of the mason contract, with other contractors selected by it, for the furnishing of such labor and material, so as to be exempt from any liability for any fault or neglect of any such contractors or for any omission or delay whatever not caused by its personal act. So it was evidently deemed by the bank essential that under such provision it should contract for the marble to be delivered at the building as fast as the mason contractors were ready therefor, regardless of *554whether delay in delivery of marble necessarily caused delay in the mason work as a whole, and to that end contracted with plaintiff as it did, taking the precaution to provide for $10 per day to be paid by plaintiff for each and every day its work should remain unfinished after the day set for its completion. That is entirely distinct from the $50 per day feature of the mason’s contract which was assumed by plaintiff in case, by its fault, such feature became operative. It was entirely feasible for the $10 per day feature to become operative and there be no valid claim under the $50 feature. With the view indicated, the trial court submitted the first question as covering the first matter and the third as covering the second.
We have examined, with care, the briefs of counsel, but do not think best to greatly extend this opinion, as would be required to review in detail the suggestions therein. None of them have escaped our notice, nor have been passed over without due attention.
As indicated, our conclusion is that the trial court correctly construed the marble contract and that the jury misunderstood the first question resulting in a verdict which is wholly unsupported by the evidence, since, as we read the pleadings and evidence, it conclusively appears that marble was not always furnished as the mason contractors were ready to use the same; that there was such delay that the subcontractor, having the work of setting the marble, was at times entirely out of material when the progress of the work required it. The verdict was contrary to law as well as contrary to the evidence, so it was properly set aside as a matter of right and not in the court’s discretion.
The verdict left unsolved the question of whether the fault of appellant delayed the mason contractors beyond May 1, 1912, in completing their contract, in respect to which there was a conflict in the evidence. So, notwithstanding it is very unfortunate that a new trial must be had, as the trial court *555suggested, there does not seem to be any way of avoiding it, unless the contention of counsel for appellant is correct that it is entitled to judgment for the balance of the contract price, regardless of the verdict, upon the ground that it does not appear affirmatively that the bank was damaged by the mere delay. Counsel rely on the doctrine of Ashland L., S. & C. Co. v. Shores, 105 Wis. 122, 135, 81 N. W. 136. That did not involve any such feature as we have here. Where there is such a feature and the parties intended to agree upon liquidated damages, it is the duty of the court to enforce it though it may appear somewhat harsh. Parties have a right to make harsh provisions in their contracts if they see fit. The nature of the provision in that regard merely bears on .the question of whether they intended to provide for liquidated damages or a mere penalty which would be limited to actual damages. Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490; J. G. Wagner Co. v. Cawker, 112 Wis. 532, 88 N. W. 599; Davis v. La Crosse H. Asso. 121 Wis. 579, 99 N. W. 351. The fact that the $50 per day feature of the mason’s contract is called a penalty in the marble contract is not controlling. It is not so called in the mason’s contract. There the contractor specifically promised “to pay to the owner fifty dollars per day for each and every legal working day the work remains incomplete after” a specified time. So far as mere words go, that language pretty plainly indicates that the parties intended to provide for liquidated damages. In any event, the real intention is what governs. Circumstances may clearly indicate that what parties called liquidated damages, they intended as a penalty, or what they called a penalty they intended as liquidated damages. That subject is fully discussed in the cited eases. In a case of this sort, the probable consequences of delay, from the standpoint of the parties at the time of making the contract, is a very persuasive indication of what they intended. Where delay would probably be attended with very little loss as com*556pared with the sum mentioned in the contract, and the actual damages could probably be very easily ascertained, the court would be inclined to the view that the parties intended to provide for a mere penalty, though they used the words, as in this case. On the other hand where the probable loss would be much in excess of the amount mentioned, the court would incline to the view that liquidated damages were intended to be provided for, though the parties used the term “penalty,” and especially where the actual damages would be difficult of ascertainment. In this case the probable value of the use of the building and ground greatly exceeded $50 per day and there were liable to be matters of loss, on account of delay, very difficult of ascertainment. On the whole, it is considered that the $50 feature of the mason’s contract was intended to provide for liquidated damages and, obviously, what was there intended was carried into the marble contract. The $10 feature thereof was, doubtless, likewise so intended.
By the Oourt.- — The order is affirmed.
A motion for a rehearing was denied, with $25 costs, on February 5, 1918.
Owen, J., took no part.