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


Clark agreed to write a series of law books for West for $2 a page. If he didn’t drink alcohol during his performance of the contract he would be paid an additional $4 per page.

  • Clark wrote the book, but West refused to pay anything over $2 since Clark didn’t completely refrain from drinking (Clark admitted this, but said his was wasn’t excessive and prevent or interfere with his performance).
  • Clark also alleged a waiver on the part of the defendants.


  • Special term overruled Wests’ motion to dismiss and ruled in favor of Clark.
  • Appellate Division reversed.


  • Was the condition precedent regarding the abstinence waived?




  • Long before Clark completed the first manuscript, West had full knowledge that Clark wasn’t holding to the provision.
  • Nonetheless, West accepted the manuscript without objection and repeatedly represented to Clark that he would receive the royalty payments.

Waiver—The non-occurrence of a condition is excused if

(1) the party whose duty is subject to the condition manifests an intention to perform the duty despite the non-occurrence of the condition; and

(2) the occurrence of the condition is not a material part of the agreed exchange.