Clark v. . West

86 N.E. 1 · New York Court of Appeals · 1908

Facts

Plaintiff contracted to write books for defendant, receiving $6/page if he abstained from alcohol, $2/page otherwise. Plaintiff admitted not fully abstaining and was paid $2/page, but claims defendant waived the abstinence condition, entitling him to $6/page. The defendant argued the condition was consideration and could not be waived without new consideration.

Issue

Can a contract condition requiring total abstinence, which affects compensation, be waived by the other party without new consideration, and are the plaintiff's allegations of express waiver sufficient to establish such a waiver?

Holding

Yes, the abstinence stipulation was a condition precedent, not consideration, and could be waived without new consideration. The plaintiff's allegations of express waiver, if proven, are sufficient to establish such a waiver.

Rule

A waiver is the intentional relinquishment of a known right, requiring no new consideration or prejudice to the other party. It applies to conditions precedent in a contract, but not to the contract's consideration itself.

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Case brief last reviewed 2026-04-28. Prepared by CaseReader from the published opinion.