American Contract Law for a Global Age, 2017a

explain) the arguments that the law professor’s abstention from alcohol was (or was
not) a condition of his payment?
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CLARK v. WEST
Court of Appeals of New York
193 N.Y. 349, 86 N.E. 1 (1908)
On February 12th, 1900, the plaintiff [Clark] and defendant [West] 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. 3 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. 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
3 [William Lawrence Clark, Jr., was one of the most successful legal treatise writers of all time.
He started publishing with John Briggs West, the 8th-grade-educated former grocery clerk and
traveling salesman who—while still living in his parents’ house—founded West Publishing Co. West
revolutionized legal practice, creating the North Western Reporter (and the subsequent National
Reporter System) in 1877 and the American Digest System (with its revolutionary key numbers) ten
years later. West expanded into legal treatises, and Clark was hired to write West’s first “Hornbooks”
on Criminal Law and Criminal Procedure, which at $3.75 each—then about the average day’s wage
for a male teacher—sold like hotcakes to American law students. In 1894, West published Clark on
Contracts, which also became very popular, and also Clark on Corporations. In 1899 Clark was hired
as a law professor at Washington & Lee University, but after engaging in what seems to have been a
course of unusually public drunkenness, he was fired after only a month or two. (His antics at W&L
were apparently notable enough that his firing was noted in newspapers as far away as Baltimore and
New York.) Meanwhile, John West had abruptly left West Publishing in 1899 and had launched a new
venture, Keefe-Davidson Law Book Co. West was looking for authors, and Clark was looking for
income. West wanted Clark to come over to Keefe-Davidson to write a new edition of an earlier Keefe-
Davidson book, Marshall on Corporations.—Eds.]
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