American Contract Law for a Global Age, 2017a

definition is supported by many cases in this and other states. See, e.g. Draper v.
Oswego County Fire Relief Assn., 82 N.E. 755 (N.Y. 1907),
It remains to be determined whether the plaintiff has alleged facts which, if
proven, will be sufficient to establish his claim of an express waiver by the defendant
of the plaintiff’s breach of the condition to observe total abstinence. In the 12th
paragraph of the complaint, the plaintiff alleges facts and circumstances which we
think, if established, would prove defendant’s waiver of plaintiff’s performance of that
contract stipulation. These facts and circumstances are that long before the plaintiff
had completed the manuscript of the first book undertaken under the contract, the
defendant had full knowledge of the plaintiff’s non-observance of that stipulation, and
that with such knowledge he not only accepted the completed manuscript without
objection, but repeatedly avowed and represented to the plaintiff that he was entitled
to and would receive said royalty payments (i.e., the additional $4 per page), and
plaintiff believed and relied upon such representations and at all times during the
writing of said treatise on corporations, and after as well as before publication thereof
as aforesaid, it was mutually understood, agreed and intended by the parties hereto
that notwithstanding plaintiff’s said use of intoxicating liquors, he was nevertheless
entitled to receive and would receive said royalty as the same accrued under said
contract.
The demurrer not only admits the truth of these allegations, but also all that
can by reasonable and fair intendment be implied therefrom. We think it cannot be
doubted that the allegations contained in the 12th paragraph of the complaint, if
proved upon the trial, would be sufficient to establish an express waiver by the
defendant of the stipulation in regard to plaintiff’s total abstinence. 4
_____________________
Review Question 4. If asked to do so, could you formulate West’s argument in
the above case? Does it effectively concede that there was a condition in the contract?
If not, exactly what is the argument that Clark is only entitled to the $2 amount?
Review Question 5. Contractual conditions, you should understand by now,
must usually be complied with strictly. Why then was Clark ultimately allowed to
4 [Keefe-Davidson never proved to be financially viable. Rights to the book were acquired by
Callaghan & Co. of Chicago, which published a second edition in 1912, the same year Keefe-Davidson
went bankrupt. West Publishing put out a new edition of Clark on Contracts in 1904, though he was
no longer involved in the work. Clark and Marshall on Corporations was later taken over by California
law professor Henry Winthrop Ballantine, with the work known as Ballantine on Corporations,. One
of its descendants is Ballantine & Sterling: California Corporation Laws, which is still a highly
regarded and popular text for practitioners. More information can be found in Robert W. Jarvis, John
B. West, Founder of West Publishing Co., 50 AM. J. LEG. HIST. 1 (2010).—Eds.]
______________________________________________________________________________
UNIT 19: CONDITIONS 389