Case Name: Clark v. West (Ct. App. NY 1908)

Facts

 

Procedural History
  • P-writer entered into K with D-publisher to write a series of law books
  • manuscript had to be OKed by D
  • P would not write other works that would compete with K-ed work
  • P would be given $2/page
  • if P abstained from drinking then D would pay an additional $4/page
  • P sued D claiming that book had been copyrighted by a company who wasn’t a party to the K
  • P seeks to compel D to transfer copyright to his name or to pay P the value of the copyright
  • D demurred (failure to state a cause of action)

-                                   at trial  Special term overruled demurrer

-                                   Appellate Div reversed and sustained demurrer

-                                   Ct. App upheld trial ct’s ruling

Issue

 

Holding
  1. Does the K state a condition precedent?
  2. Was the condition precedent waived?

 

Rule

 

Disposition

A condition precedent can be waived

 

Forfeiture shall stand and fall with the condition.

 

If a condition is waived, the condition is no longer part of the K

interlocutory appeal à sent back to trial court for findings of fact

Analysis

D’s argument

-         the deal was ABSITENCE in exchange for $4/page

-         therefore, abstinence clause could not be waived except with a new agreement AND proper consideration

-         ALSO argues that even if D represented that D would not insist on condition precedent, D can still refuse to pay the extra $4/page

P’s argument

-         deal was that ABSITENCE was a condition precedent

-         failure to abstain from liquor à would not be paid the full $6/page

-         could be waived without add’n consideration à was waived

Court says:

-         this is a K to write a book with a stipulation that P should be sober if he is to get the full amount

-         D was not bargaining for sobriety and was not part of the consideration

-         this was NOT a K to write books so that the P would remain sober/dry

 

-         no implied waiver from the acceptance of the manuscript and the payment of the $2 without objection ß part of the K

 

 

-         DOCTRINE OF WAIVER

-         waiver = intentional relinquishment of known right

-         wiaver is voluntary

-         implies an election to dispense with something of value OR

-         forego some advantage for which the party had the right to demand or insist upon

-         waiver = voluntary intentional relinquishment of some right or advantage

-         WAIVER accomplished through election or estoppel?

 

conditions bite hard

courts don’t like these because conditions can result in forfeiture

 

if you called Redding pipe a condition then builder doesn’t get money à forfeiture

 

once book was given à have party sign an express waiver à then you have no question

 

waiver in effect modifies a contract à why doesn’t this need new consideration

courts make an exception to the consideration doctrine

 

forfeiture = D has a book and getting profits and P hasn’t gotten paid. that’s not right. LOOK AT THE EQUITIES!!!

 

modern courts

if they say that it is part of the consideration à PROMISE and not condition

BUT look at the surrounding circumstances

look at Dove