On January 2, Hugh Homey and Sue Structo entered into a written contract in which Structo agreed to build on Homey's lot a new house for Homey, according to plans and specifications furnished by Homey's architect, Barbara Bilevel, at a contract price of $200,000. The contract provided for specified progress payments and a final payment of $40,000 upon Homey's acceptance of the house and issuance of a certificate of final approval by the architect. Further, under a "liquidated damages" clause in the agreement, Structo promised to pay Homey $500 for each day's delay in completing the house after the following October 1. Homey, however, told Structo on January 2, before the contract was signed, that he would be on an around-the-world vacation trip most of the summer and fall and would not return to occupy the house until November 1."For this question only, assume the following facts. Because she was overextended on other construction jobs, Structo did not complete the house until October 15. Homey returned on November 1 as planned and occupied the house. Ten days later, after making the $40,000 final payment to Structo, Homey learned for the first time that the house had not been completed until October 15. If Homey sues Structo for breach of contract on account of the 15-day delay in completion, which of the following will the court probably decide?
Homey will recover damages as specified in the contract, i.e., $500 multiplied by 15.  Homey will recover his actual damages, if any, caused by the delay in completion.  Having waived the delay by occupying the house and making the final payment Homey will recover nothing. Homey will recover nothing because the contractual completion date was impliedly modified to November 1 when Homey on January 2 advised Structo about Homey's prospective trip and return date.