Citation. 193 N.Y. 349, 86 N.E. 1,1908 N.Y. 654
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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.
Facts.
Plaintiff and Defendant entered into a contract for the Plaintiff to write a series of law books. After the Plaintiff wrote “Clark & Marshall on Corporations” the parties had a disagreement. The contract had a clause that the Plaintiff agrees to abstain from the use of intoxicating liquors during the continuance of the contract and payment is dependent on the faithful performance of this condition and others to the contract. The Plaintiff was to be paid $6.00 a page if he did not drink and $2.00 if he did not comply with the condition. While Plaintiff was writing, the Defendant assures him that strict compliance to this condition is not necessary. Plaintiff started drinking and Defendant refused to pay him. Plaintiff’s complaint alleges that he is due $2.00 per page for the work completed but Defendant refused to pay him. Plaintiff’s breach of contract claim alleged that Defendant took out a copyright on Plaintiff’s work on corporations in the name of a publishing company, whi
ch had no relation to the contract and the relief asked for that the copyright be transferred to the Plaintiff or that he discover its value. Plaintiff claimed that Defendant broke the contract by causing the book to be copyrighted in the name of the corporation, which was not a party to the contract and brought this action to recover what he claims to be due to him. Defendant brought a Motion to Dismiss on the ground that it did not state facts sufficient to constitute a cause of action. The Special Term overruled the Motion to Dismiss, but the Appellate Division reversed the decision and the motion was sustained.
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.
