¶1The delay of the State Highway Commissioner until October 20, 1915, did not necessitate the delay of the claimant until'the following year. The court has found at the claimant’s request that it could have completed the work in six weeks which would have made the completion earlier in the year than it was actually completed in the following year. It has also been found at claimant’s request that its road building *78machinery and plant were idle and that there was sufficient labor available in the autumn of 1915. It is also found that the delay until the following year was the result of a mutual agreement and that “ in conformity with this arrangement the work was not started by the claimant until the month of April, 1916.” Such delay was at the suggestion and for the convenience of the claimant. That must be so because the contract as accepted by claimant required its performance within eighty days. If the claimant was dissatisfied with the delay of the Commissioner it should have repudiated the contract at that time and not have accepted its benefits. I think it clearly waived the delay which up to that time had been occasioned. If the claimant on October 20, 1915, had stood on its rights a different measure of damages would be applicable to the case. Furthermore, having accepted the contract and having made a further agreement for postponed performance thereof and having enjoyed the fruits thereof and having received full payment of the contract price according to its terms, I do not think it can recover for a breach of that contract which consists solely in not having signed it more speedily. (New York State Construction Co. v. City of New York, 163 App. Div. 227.) Full performance of the contract and such a breach thereof as is here alleged cannot co-exist. And in any event the damages would only be such as the claimant would have sustained if it had promptly performed the contract as by its terms required after October 20, 1915.
¶2I favor an affirmance of the judgment.
¶3John M. Kellogg, P. J., concurs.
¶4Judgment modified by adding to the recovery the damages which the Court of Claims found were sustained by claimant through its performance of the contract in the year 1916 rather than in the year 1915, and as modified affirmed, with costs to the appellant. An additional finding is made that the delays occasioned by the State through its Highway Commission necessarily postponed construction of the highway until the year 1916 as actually constructed; and findings 11, 13 and 14 are disapproved.