Clark v. West

• Decision Date: 10 November 1908
• Citation: 86 N.E. 1,193 N.Y. 349
• Parties: CLARK v. WEST.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 349

86 N.E. 1

CLARK

v.WEST.

Court of Appeals of New York.

Nov. 10, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William L. Clark against John B. West. From a judgment of the Appellate Division of the Supreme Court reversing an interlocutory judgment overruling a demurrer to the complaint and sustaining the demurrer (125 App. Div. 654,110 N. Y. Supp. 110), plaintiff, by permission, appeals, and the Appellate Division certifies questions. Reversed, and interlocutory judgment affirmed.

On February 12, 1900, the plaintiff and defendant entered into a written contract, under which the former was to write and prepare for publication for the latter a series of law books, the compensation for which was provided in the contract. After the plaintiff had completed a three-volume work known as ‘Clark & Marshall on Corporations,’ the parties disagreed. The plaintiff claimed that the defendant had broken the contract by causing the book to be copyrighted in the name of a corporation which was not a party to the contract, and he brought this action to recover what he claims to be due him, for an accounting and other relief. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer, but upon appeal to the Appellate Division that decision was reversed and the demurrer sustained.

Those portions of the contract which are germane to the present stage of the controversy are as follows: The plaintiff agreed to write a series of books relating to specified legal subjects. The manuscript furnished by him was to be satisfactory to the defendant. The plaintiff was not to write or edit anything that would interfere with the sale of books to be written by him under the contract, and he was not to write any other books unless requested so to do by the defendant, in which latter event he was to be paid $3,000 a year. The contract contained a clause which provided that ‘the first party (the plaintiff) agrees to totally abstain from the use of intoxicating liquors during the continuance of this contract, and that the payment to him in accordance with the terms of this contract of any money in excess of $2 per page is dependent on the faithful performance of this as well as the other conditions of this contract. * * *’ In a later paragraph it further recited that, ‘in consideration of the above promises of the first party (the plaintiff), the second party, (the defendant) agrees to pay to the first party $2 per page, * * * on each book prepared by the first party under this contract and accepted by the second party, and if said first party abstains from the use of intoxicating liquor and otherwise fulfills his agreements as hereinbefore set forth, he shall be paid an additional $4 per page in manner hereinbefore stated.’ This was followed by a specification of the method and times of payment, in which it was agreed that: ‘When a completed chapter or completed chapters amounting to not less than 125 pages, to be delivered to the second party each month, are so delivered, the second party shall pay to the first party $2 per page, but he shall not be required to pay more than $250 in any one month prior to the acceptance by him of a completed book. These advance payments are to be made as soon as the completed chapters are delivered as above stated, but if, after such delivery and payment, the manuscript shall not be regarded by the second party as satisfactory, no further payment shall be made until the first party shall have made the same satisfactory to the second party. All payments on account of parts of books are to be treated as payments on account, against the books previously completed and accepted. They are for accommodation of first party only. After the publication of any book or books prepared by the first party under this contract, he shall at the end of every six months be entitled to receive, and the second party agrees to pay him, an amount equal to one-sixth of the net receipts from the combined sales of all books which shall have been prepared by the said first party and published by the said second party under this contract, less any and all payments previously made, said first party and all money then due the second party from the first party, until the amount of $6 per page of each book shall have been paid, after which the first party shall have no right, title of interest in said books or the receipts from the sale thereof.’

The plaintiff in his complaint alleges completion of the work on Corporations and publication thereof by the defendant, the sale of many copies thereof from which the defendant received large net receipts, the number of pages it contained (3,469), for which he had been paid at the rate of $2 per page, amounting to $6,938, and that defendant has refused to pay him any sum over and above that amount or any sum in excess of $2 per page. Full performance of the agreement on plaintiff's part is alleged, except that he ‘did not totally abstain from the use of intoxicating liquor during the continuance of said contract; but such use by the plaintiff was not excessive and did not prevent or interfere with the due and full performance by the plaintiff of all the other stipulations in said contract.’ The complaint further alleges a waiver on the part of the defendant of the plaintiff's stipulation to totally abstain from the use of intoxicating liquors, as follows: ‘(12) That defendant waived plaintiff's breach of the stipulation to totally abstain from the use of intoxicating liquors during the continuance of said contract; that long prior to the completion of said manuscript on Corporations, and its delivery to and acceptance by the defendant, the defendant had full knowledge and well knew of plaintiff's said use of intoxicating liquor during the continuance of said contract, but nevertheless acquiesced in and failed to object thereto, and did not terminate the contract on account thereof; that with full knowledge of said breach by the plaintiff defendant continued to exact and require of the plaintiff performance of all the other stipulations and conditions of said contract, and treated the same as still in force, and continued to receive, and did receive, installments of manuscript under said contract, and continued to make and did make payments to plaintiff by way of advancements, and finally accepted and published said manuscript as aforesaid; that at no time during the performance of said contract by the plaintiff did the defendant notify or intimate to the plaintiff that defendant would insist upon strict compliance with said stipulation to totally abstain from the use of intoxicating liquor, or that defendant intended to take advantage of plaintiff's said breach, and on account and by reason thereof refuse to pay plaintiff the royalty stipulated in said contract; that, on the contrary, and with full knowledge of plaintiff's said use of intoxicating liquors, defendant repeatedly avowed and represented to the plaintiff that he was entitled to and would receive said royalty payment, and plaintiff believed and relied on said representation, and in reliance thereon continued in the performance of said contract until the time of the breach thereof by the defendant, as hereinafter specifically alleged, and at all times during the writing of said treatise on Corporations, and after as well as before publication thereof, as aforesaid, it was mutually understood, agreed, and intended by the parties hereto that, notwithstanding plaintiff's said use of intoxicating liquors, he was nevertheless entitled to receive and would receive said royalty as the same accrued under said contract.’ The defendant's breach of the contract is then alleged, which is claimed to consist in his having taken out a copyright upon the plaintiff's work on Corporations in the name of a publishing company which had no relation to the contract, and the relief asked for is that the defendant be compelled to account, and that the copyright be transferred to the plaintiff, or that he recover its value.

The appeal is by permission of the Appellate Division, and the following questions have been certified to us: (1) Does the complaint herein state facts sufficient to constitute a cause of action? (2) Under the terms of the contract alleged in the complaint, is the plaintiff's total abstinence from the use of intoxicating liquors a condition precedent which can be waived so as to render defendant liable upon the contract notwithstanding plaintiff's use of intoxicating liquors? (3) Does the complaint herein allege facts constituting a valid and effective waiver of plaintiff's nonperformance of such condition precedent?William B. Hale, for appellant.

H. V. Rutherford, for respondent.

WERNER, J. (after stating the facts as above).

The contract before us, stripped of all superfluous verbiage, binds the plaintiff to total abstention from the use of intoxicating liquors during the continuance of the work which he was employed to do. The stipulations relating to the plaintiff's compensation provide that if he does not observe this condition he is to be paid at the rate of $2 per page, and if he does comply therewith he is to receive $6 per page. The plaintiff has written one book under the contract, known as ‘Clark & Marshall on Corporations,’ which has been accepted, published, and copies sold in large numbers by the defendant. The plaintiff admits that while he was at work on this book he did not entirely abstain from the use of intoxicating liquors. He has been paid only $2 per page for the work he has done. He claims that, despite his breach of this condition, he is entitled to the full compensation of $6 per page, because the defendant, with full knowledge of plaintiff's nonobservance of this stipulation as to total abstinence, has waived the breach thereof and cannot now...