In my opinion it is immaterial whether there had been breaches of the original contract prior to June 21,1912, for the reason that on that date, with full knowledge, the plaintiff wrote demanding performance on the part of the defendant, thereby waiving any prior breaches on the part of the defendant. There is no request for a reply in this letter; the only condition imposed was that the defendant should deliver within four weeks the terra cotta for the first story of the building. There is no evidence that defendant refused to proceed with the work after receiving plaintiff’s demand of June *63twenty-first, and, therefore, nothing to justify the plaintiff’s repudiation of the contract on June twenty-seventh. A mere delay of six days in answering a letter, where no reply was requested, was clearly not a breadh of the contract by the defendant, nor equivalent to a refusal to perform.
The judgment should be affirmed, with costs.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.