CLARK v. WEST
193 N.Y.
349, 86 N.E. 1 (1908)
FACTS: A contract between Clark and West was formed for Clark to write a law book on corporations for West Publishing. It was a condition in the contract that to be paid the full amount ($6) per page Clark must refrain from drinking intoxicating liquors; if he drinks he gets only $2 per page. After the book was written and many copies were sold, Clark admitted that he did not refrain from alcohol but thinks he is still entitled to the full amount per page, West wants to pay him only $2 because he did not fulfill the condition.
Clark thinks that soberness was just a condition precedent (an act that must exist before a duty to perform a promise arises). Clark says that West waived the condition precedent because he knew of Clark’s non-observance of the provision and therefore it wasn’t a breach and West can’t ask for strict performance. Clark already performed, he wrote a book, and so the condition can be waived. Plaintiff thinks that his abstinence was just a condition, all that was really asked of him was to write a good book.
Defendant says that there was a breach and there could be no waiver except if there was a new agreement because the refraining condition was the consideration. There only needs to be a consideration for an amendment which both parties need to agree to. A waiver, which is the case here, does not require a new consideration and both parties do not need to agree to it.
ISSUE: Was the requirement to remain sober while writing the books a condition precedent?
HOLDING: Yes. The court agrees with the plaintiff that soberness was just a condition precedent, which was not a vital part of the contract, but one which the defendant could have insisted on or waived. It must be an express waiver only if the condition is directly related to the book, here it was an incidental condition and defendant still got the book. No breach was found in this situation because conditions cannot be breached.
RULE: Conditions can be waived, but cannot be breached
RATIONALE: Court says that $6 is the amount that the plaintiff was supposed to get for the writing he did, not for staying sober and so the doctrine of waiver applies. Doctrine of waiver has been interpreted as meaning if the insurer set out conditions and they were relied on but in the end insurer meant not to insist upon them, a waiver is created. This is what happened in this case. When the defendant knew of plaintiff’s nonobservance and still accepted the book and told the plaintiff that he was entitled to $6 per page the plaintiff RELIED upon this. As a result, under the doctrine of waiver, the sobriety condition was waived. Waiver and estoppels deal with post formation of the contract. Difference between estoppel and waiver is reliance. Have to look to the party’s actions to determine a waiver. Can’t do something that is directly related to the consideration. West relinquished its right to the breach. (which is the waiver) Can have both a waiver and an estoppel, as it might be here. If one person waives a right and the other person had reasonably relied on it.