A party waives an express condition when it owes a conditional duty to another party, and indicates that it will not insist upon the occurrence of that condition before performance of the contract.
Parties entered into a contract for the plaintiff to write a series of law books. After plaintiff wrote a book on Corporations, the parties had a disagreement. Their contract had a clause that plaintiff was to abstain from drinking during the duration of the contract, and that payment under the contract is dependent on the faithful performance of this condition. Plaintiff would earn $6 per page if he complied with the condition, and $2 per page if he did not. While plaintiff is writing, defendant assures that complete compliance is not necessary. Plaintiff started drinking, and defendant refused to pay him. Plaintiff sues, and claims that he is due $2 per page for work done, and that defendant took out a copyright on plaintiff's work. Plaintiff claims that defendant broke the contract by causing the book to be copyrighted, and brought the action to recover money owed to plaintiff. Defendant brought a Motion to Dismiss on the ground that it did not state facts sufficient to constitute a cause of action. The Special Term overruled the Motion to Dismiss, but the Appellate Division reversed the decision and the motion was sustained. Plaintiff appeals.
Whether plaintiff's abstention from alcohol was an express condition, or merely a promise?
Plaintiff's abstention from alcohol was ruled to be an express condition.
In reversing the appellate court's decision, the Court of Appeals ruled that the parties' provision was an express condition because defendant was bargaining for plaintiff to write books, not for the plaintiff's abstention. Though it was an express condition, the defendant waived strict compliance. Here, defendant's behavior created a situation where the doctrine of waiver applies, and defendant's motion to dismiss should be overruled, and defendant should be permitted to answer the complaint.