Dissenting Opinion by
Keller, J. :I am unable to agree with the conclusion of the majority of the court. While the instructions of the trial judge with respect to damages for delay, complained of in the first and second assignments of error, were technically erroneous as pointed out in the opinion of the court, no harm was done the defendant, for in my judgment, the provision in the contract providing for the payment of a specified sum per day as liquidated damages for delay had been waived by the defendant, and that item should not have been submitted to the jury at all. It was practically admitted by the defendant and his representative, the architect, that the work had been shut down over the winter by agreement of both parties, because the weather was not fit for laying brick, and that the brick work started as soon as the weather permitted. *24Conflicting claims were presented at the trial as to the reason for the further delay in completing the building, each party blaming it on the other. A careful review of all the testimony, however, fails to disclose one word of complaint or dissatisfaction uttered by the defendant during the course of the building operations,' .with the progress of the work, or of objection that the time limit prescribed in the contract was being exceeded. On the contrary, it was admitted that the defendant made payments to the plaintiff on account of the contract price, long after the time when the building should have been completed, and largely in excess of the amount due the plaintiff if enforcement of the provision for damages for delay had been contemplated. The appellant’s real ground of defense was that he had paid the plaintiff the contract price in full; his claim for damages for delay was clearly an afterthought, not presented to the plaintiff until after suit was brought.
The case, in my opinion, is squarely ruled by the decision of the Supreme Court in Coryell v. DuBois Borough, 226 Pa. 103, that where a building contract provides for a deduction of a stated amount as liquidated damages from the contractor’s compensation for each day of delay after a time specified, the owner cannot claim such deduction where he has made no objection to the delay and by his conduct has given the contractor grounds for believing that the provisions of the contract as to the penalty for delay would not be enforced.
I would affirm the judgment.