Clark v. West

193 N.Y 349, 86 N.E. 1 (1908)

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Nature of the Case

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Facts

P agreed to write a series of law books and was paid by D $3,000 per year to do so. The contract had an abstention agreement from intoxicating liquors, and the payment to P of any money in excess of $2 per page was dependent on the faithful performance of that as well as other conditions of the contract. P finished the work on Corporations, and it was 3,469 pages. D refused to pay P above the $2 per page rate because P did not abstain from intoxicating liquor. P claims that his use was not excessive and it did not interfere with the execution of the contract and that D had waived any objection by continuing to tell P that he was entitled to the extra $4 per page even though D knew that P was not abstaining. P sued for a breach of the contract in that D had the finished works copyrighted under the Corporate name and sought an accounting. Three questions were certified to the upper court. (1) Does the complaint state facts sufficient to constitute a cause of action? (2) Under the terms of the contract is P’s total abstinence from the use of liquors a condition precedent which can be waived so as to render D liable upon the contract notwithstanding P’s use of such liquors? (3) Does the complaint allege facts constituting a valid and effective waiver of P’s nonperformance of such a condition precedent?