Brief Fact Summary. Clark (Plaintiff) and West (Defendant) entered into a written contract for the former to write and prepare for publication a series of law books. The Special Term overruled the Defendant’s Motion to Dismiss. The Appellate Division reversed and sustained Defendant’s Motion to Dismiss. Plaintiff appealed.
Synopsis of Rule of Law. A waiver of an express condition occurs when a party who owes a conditional duty may indicate that he will not insist upon the occurrence of the condition before performing.
Issue. Whether Plaintiff’s abstention from alcohol was an express condition or merely a promise?
Held. The provision was an express condition. Judgment is reversed.
The provision to abstain for alcohol was an express condition because Defendant was bargaining for Plaintiff’s writing of books and not for Plaintiff’s abstention. Even though it was an express condition, it was waived when the Defendant stated that strict compliance was not necessary.
It is not a contract to write books in order that the Plaintiff shall keep sober but a contract containing a stipulation that he shall keep sober so that he may write satisfactory books. Here, the waiver is not of the consideration or subject matter but of an incident to the method of performance. If the Plaintiff waived the incidental condition, he has created a situation to which the doctrine of waiver applies. Therefore, the Motion to Dismiss is overruled and Defendant should be permitted to answer the complaint.
Discussion. The non-occurrence of a condition is excused in some particular instances. A party who owes a conditional duty may indicate that he will not insist upon the occurrence of the condition before performing. In other words, the party is said to waive the condition.