122 N.Y.S. 380 | N.Y. App. Div. | 1910
Clark, a book writer, agreed in writing with West to prepare a “ series of text books for law students on the following subjects: * * * Corporations, Torts, Bailments, Agency, and Pléading and Practice, * * * and also write and prepare such other books for said series as the second party may direct,” with authority in. West to direct the order of preparation of the books in the series, and to substitute other sub jects for any of those named. Clark agreed, among other things, to prepare “ at the rate of not less than 125 pages each month,” and tó deliver to West the manuscript of completed chapters at the end of each month “ for the ■ purpose of obtaining advance payments on account of the [completed book of which said chapters are parts only,” but it was stipulated “ such-delivery is in nowise the delivery of the book, entitling the first party to payments as such upon acceptance of same.” Clark further agreed that he would “ defend the copyright of the same against all adverse claims,” and that “ the copyright of all books prepared ” by him “ shall be taken out in his name, and imtnedi- . ately thereafter assigned by him to the second party, subject to the conditions of this contract.” Clark further agreed that after publication of any edition of “ said works, and so long as he has an interest in the sales of same,” to collect and prepare new cases and other new matter for addition “ as often as the second party shall desire to publish a new edition.” Clark further grants to West “ the sole and exclusive privilege and license of printing, publishing, and. selling, or otherwise disposing of said works and all revisions of the same during the continuance of any copyright or renewals thereof, or his interest in the same, and also the right to use any part of the material in said works in local books, and in . monographs, articles, notes, or annotations, or books or other legal topics or on subdivisions of the particular subjects, prior to same becoming the exclusive property of said second party.” West agreed “ that when the manuscript of an entire work has been all delivered to him, he will proceed to examine the same, and he will accept the same within thirty days after the receipt of the same,”
Clark prepared a general work dn Corporations, which was in substitution of the smaller work first contemplated for the students’ series, and also 400 pages of Torts, when' he refused to do further work under the contract for the reason given that West had permitted his publishing company to take in its name the copyright of Corporations, and refused and was unable to remedy this breach of the contract.
The plaintiff claims that the contract is divisible, so that the first, cause of action relating to Corporations is independent of his agreement to prepare other books. The same claim is tendered in support of the second cause of action, which is for conversion, of the manuscript of Torts. If this were true, Clark could recover for any failure to pay the two dollars per page for Corporations which was published. But Clark did not recover for the two dollars per page, as that "had been paid, but for .the four dollars per page in addition, the payment of which was conditioned on his faithful performance of the “other conditions of this contract,” and the fulfillment of his agreements, and upon receipt by West of net receipts, one-sixth whereof would measure additional payments to Clark. But the complaint alleges accrued net receipts, and demands judgment for $13,876 and interest, or in the alternative that defendant account, and vest a valid copyright in said treatise on Corporations in the plaintiff, or in the event that a valid copyright “ cannot be, or is not, forthwith vested in the plaintiff,” that he have 'judgment for the sums named. The court directed recovery on Corporations for such amount, which is based entirely on the four dollars per page so promised conditionally, without evidence of the receipt of adequate net profits. So the questions as to this first cause of action are, has it a valid existence; second, is the recovery justified ? The plaintiff seeks to sustain the first cause of action upon the principal ground, as stated, that the contract is divisible. The defendant asserts that it cannot exist as the contract is entire, and that there is no existing breach of it on the part of West. The plaintiff asserts its divisibility, and the defendant affirms its entirety, as a matter of law (Tipton v. Feitner, 20 N. Y. 423;
It is a restatement of what lias been said that if a covenant by one party goes to the whole consideration of a promise by the other party its performance is a condition precedent to the right to enforce the promise ; but if it goes only to a part of the consideration, the promise of the other party may be enforced without performance of the covenant, the other party being left to his right to recover damages for non-performance of the covenant. (Mill Dam Foundery v. Hovey, 21 Pick. 417,439; Boyle v. Guysinger, 12 Ind. 273; Coe v. Bradley, 5 Fed. Cas. 1170, case No. 2941; Water Lot Co. v. Leonard, 30 Ga. 573 ; Dey v. Dox, 9 Wend. 129 ; 24 Am. Dec. 137.)
So it is the general rule that a contract is entire when it appears that one party relies upon the performance by the other party of his promises and divisible when it appears that the reliance was on the promise of the other party and a remedy to recover damages.
The judgment should be affirmed, with costs.
Hirschberg, P. J., Jenks, Burr and Carr, JJ., concurred.
Judgment affirmed, -with costs.