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Second Department, March, 1910.

[Vol. 137. that the defendant did have "assigns" of the business; that such "assigns" did not "cease to continue in the coal business" at the designated place, and that defendant was bound to fulfill, or to provide fulfillment of his contract. For many years defendant had agreements with Havemeyer & Elder, who owned the docks and other property, which they contributed to the business, and the profits were apportioned. When this relation expired by limitation, although Palmer wished otherwise, Havemeyer & Elder refused renewal or continuance of such relation, or any relation. There is no evidence whatever that defendant continued the business, or that he was, directly or indirectly, interested therein, or that he assigned the business or in any manner promoted it in the hands of another, or that Havemeyer & Elder, or any other person or company, carried it on under any agreement, understanding or right, had with or received from the defendant. All matters relating to the coal business were ended by Havemeyer & Elder taking the books, accounts, coal, "tow boats and things like that," which accrued or were bought under their agreement with defendant, and paying defendant a sum of money for his share of the profits earned to June 1, 1906. "The personal property on hand was valued in order to estimate the profits. That was all. And part of my share of the profits earned to the conclusion of the contract was paid me, not all of it. There is some of it in controversy. The payment that was made me was my share of the profits, and nothing else." The agreement that connected Havemeyer & Elder and Palmer in business was broader than the coal business at the foot of North Ninth street. The agreement of 1890 was to the effect that Havemeyer & Elder should provide "the real estate, floats, tugs, docks, and other appliances and the money required," and for a return to them of the same, with interest as provided upon the termination of the agreement. In June, 1891, this agreement was extended to June 1, 1906, and it was stipulated that Mrs. Palmer should provide for the use of the business certain property at Greenpoint, but that had no connection with the coal business. The fact is that Havemeyer & Elder had agreements with Palmer whereby, among other things, he was enabled to carry on the coal business at the foot of North Ninth street, which was terminated by the fixed time limit. Have

App. Div.]

Second Department, March, 1910.

meyer & Elder would not continue, although Palmer desired it; the former took back their own and the business was liquidated, subject to some differences. There is no ground for the contention that an assignment of the business was made or is implied. The learned counsel for the appellant has made the best use of plaintiff's opportunity, but the contract speaks plainly and the facts clearly favor the defendant.

The order should be reversed, with costs, and the verdict restored. WOODWARD, JENKS, THOMAS, RICH and CARR, JJ., concurred. Order reversed, with costs, and verdict reinstated, with costs.

WILLIAM L. CLARK, Respondent, v. JOHN B. WEST, Appellant. Second Department, March 31, 1910.

Contract - rules of construction-when contract entire, when divisible -intention governs - recovery for part performance on breach of entire contract - agreement to write series of law books - breach by taking copyright in name of corporation contrary to agreementdamages — contract price - equity-recovery at law in suit in equity. The purpose of the rules governing the interpretation of contracts is to aid in discovering the intention of the parties.

The divisibility or entirety of a contract depends wholly upon the intention of the parties to be gathered from its several provisions and from the surrounding circumstances.

A contract providing for periodic payments permits a recovery for a part performance when entire performance is not contemplated.

If a day be appointed for the payment of money and that day is to arrive or may arrive before the time when the consideration for the money is to be performed, the performance of the consideration is not a condition precedent to the right to recover the money.

If a covenant by one party goes to the whole consideration of a promise by the other, 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 action for damages for non-performance of the covenant. A contract is entire when it appears that one party relies upon the performance by the other party of his promises, and is divisible when it appears that the reliance was on the promise of the other party and a remedy to recover damages.

Second Department, March, 1910.

[Vol. 137. A contract required the plaintiff to write for the defendant a series of text books upon five specific branches of the law, and to write such other books for the series as the defendant might direct. The manuscript was to be delivered in installments for the purpose of obtaining advanced payments on account of the completed book of which the installments were parts, but such delivery was not to be considered a delivery of the book so as to entitle the plaintiff to payment as upon acceptance. It was agreed that the plaintiff should take the copyright in his own name and assign the same to the defendant who was to have the sole privilege of publishing and selling the book during the copyright term. The defendant agreed to pay the plaintiff two dollars per page on each book accepted, to be treated as payments on account against books previously completed and accepted, and the plaintiff was entitled to receive one sixth of the net receipts from the combined sale of all books that be wrote until such time as he had been paid four dollars per page in addition, making in all six dollars per page, after which the plaintiff was to have no right in the books, or in the receipts from the sale thereof.

The plaintiff prepared and delivered the manuscript of one of the books and part of the manuscript of another, receiving two dollars per page, and then refused to continue under the contract because the defendant had permitted his publishing company, a corporation, to take the copyright of the book in its own name. In an action to recover an additional four dollars per page on the theory that the contract was divisible and not entire,

Held, that the contract was entire, not divisible, so that the plaintiff in order to recover must show a breach thereof by the defendant which prevented performance by the plaintiff;

That the defendant by causing the copyright to be taken in the name of his corporation so as to deprive the plaintiff of the protection accorded by the copyright laws, made a breach of the contract which was not waived by the fact that the plaintiff gave him an opportunity to correct the error;

That the plaintiff was not guilty of a breach of contract by reason of the fact that, although he had promised not to write for others, he did write an article without remuneration to aid a sick friend;

That although the plaintiff was not entitled to equitable relief by way of specific performance in that he did not tender performance on his part, but refused the same, the court in the absence of objection by the defendant that the case was improperly laid in equity could give money damages to be measured by the additional payments required by the contract although the defendant had not earned the net profits from which the additional payment was to be made. This, because his failure to earn such profits was due to his own breach of the contract.

APPEAL by the defendant, John B. West, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

App. Div.]

Second Department, March, 1910.

H. V. Rutherford, for the appellant.

William B. Hale, for the respondent.

THOMAS, J.:

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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 Pleading 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 subjects for any of those named. Clark agreed, among other things, to prepare "at the rate of not less than 125 pages each month," and to 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 immediately 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 saine," 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,"

Second Department, March, 1910.

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[Vol. 137.

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or return same for correction. The contract provides: "the second party agrees to pay to the first party $2 per page, each book prepared by the first party under this contract and accepted by the second party, and if said first party abstains from the use of intoxicating liquor and otherwise fulfills his agreements as herein before set forth, he shall be paid an additional $4 per page in manner hereinafter stated. * * When a completed chap

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ter or completed chapters amounting to not less than 125 pages, to be delivered to the second party each month are so delivered, the second party shall pay to the first party $2 per page. But he shall not be required to pay more than $250 in any one month prior to the acceptance by him of a completed book. These advance payments are to be made as soon as the completed chapters are delivered as above stated, but if, after such delivery and payment, the manuscript shall not be regarded by the second party as satisfactory, no further payment shall be made until the first party shall have made the same satisfactory to the second party. All payments on account of parts of books are to be treated as payments on account, against books previously completed and accepted. They are for accommodation of first party only. After the publication of any book or books prepared by the first party under this contract, he shail at the end of every six months be entitled to receive, and the second party agrees to pay him, an amount equal to one-sixth of the net receipts from the combined sales of all books which shall have been prepared by the said first party and published by the said second party under this contract, less any and all payments previously made said first party and all money then due the second party from the first party, until the amount of $6 per page of each book shall have been paid, after which the first party shall have no right, title or interest in said books or the receipts from the sales thereof. But no accounting shall be made for any copies of said works that may be lost, stolen or destroyed by fire or otherwise, or upon any copies disposed of as a means of advertising and pushing the sale of said works, or upon five copies of each edition to be given to the first party. * * * The second party also agrees that if and when he accepts the manuscript of any book prepared by the first party under this contract, he will proceed at once to print and publish the same in such form as he may deem best, and after its

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