App. Div.]

Second Department, March, 1910.

publication will advertise and push its sale to the best of his ability, so long as anything may be due the first party under the terms of this contract."

Clark prepared a general work on 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.

per

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 formance 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 judg ment 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;

Second Department, March, 1910.

[Vol. 137. Central New York Tel. & Tel. Co. v. Averill, 58 Misc. Rep. 59), upon rules of interpretation to which attention will be specifically called. All rules of interpretation of a contract here involved are aids to one purpose, and that is to discover the intention of the parties. One element of a contract may be more helpful than another to indicate intention. To certain types of agreements the courts have ascribed greater relative potency, so that in the absence of other overmastering terms they by their own force establish intention. But no rule is per se determinative. The intention of the parties fixes the divisibility or entirety of the contract (Tipton v. Feitner, 20 N. Y. 423, 425, 431; Glenn v. Rossler, 156 id. 161, 168; Wald's Pollock Cont. [3d ed.] 320; Slater v. Emerson, 19 How. [U. S.] 224) gathered from its several provisions (Tipton v. Feitner, supra; Toher v. Schaefer, 45 Misc. Rep. 618) and the circumstances surrounding the agreement (Skillman Hardware Co. v. Davis, 53 N. J. L. 144, 147). Special tests must yield to overbalancing evidences of intention. Divisibility of subjects and differences in their nature are not conclusive tests. (Shinn v. Bodine, 60 Penn. St. 182, 185; Wald's Pollock Cont. [3d ed.] 317; Providence Coal Co. v. Coxe Bros. & Co., 19 R. I. 380.) Stipulations that several acts be done at different times are strong in interpretative suggestion of a divisible contract unless the consideration be entire (Badger v. Titcomb, 15 Pick. [Mass.] 409), but such terms do not exclude a contrary conclusion. (Slater v. Emerson, 19 How. [U. S.] 224, 238.) So as to stipulations to deliver articles varying in size, price and at different times (Catlin v. Tobias, 26 N. Y. 217; approved, People ex rel. Cossey v. Grout, 179 id. 417), and so as to modes of measuring the price, as by the bushel, ton or pound (Shinn v. Bodine, 60 Penn. St. 185), although in the absence of stronger adverse evidences of intention sales of different articles deliverable in installments are divisible (Pope v. Porter, 102 N. Y. 366; Pierson v. Crooks, 115 id. 539), but the court recognized the supremacy of intention (p. 555). The sale of several distinct items of property is entire when the promise by the purchaser is conditioned on entire performance by the vendor, but in the absence of such condition, where the price to be paid is apportioned to each item in terms or by implication of law, the contract is divisible (Ming v. Corbin, 142 N. Y. 334), but the court sought the intention of the parties (p. 341) and sustained

App. Div.]

Second Department, March, 1910.

a finding of the jury that it was divisible (p. 343). Indeed, the opinion states: "Whether a contract is entire or to be taken distributively is often a question of intention and frequently one of fact." So provision for periodic payments permits recovery for the part performed when entire performance is not contemplated. (Walsh v. New York & Kentucky Co., 88 App. Div. 477; Tipton v. Feitner, 20 N. Y. 426.) It is a rule of construction that 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 money is to be performed, the performance of the consideration is not a condition precedent to the right to recover the money. (Meriden Britannia Co. v. Zingsen, 48 N. Y. 247, citing Morris v. Sliter, 1 Den. 59, where intention controlled; De Kay v. Bliss, 120 N. Y. 91; Smith v. Betts, 16 How. Pr. 251; Front St., etc., R. R. Co. v. Butler, 50 Cal. 574, 577; Skillman Hardware Co. v. Davis, 53 N. J. L. 144; Central Appalachian Co. v. Buchanan, 73 Fed. Rep. 1006.) This is only saying that the dependence or independence of covenants may be determined by the order of time in which, by the terms and meaning of the contract, their performance is required. (Grant v. Johnson, 5 N. Y. 247; Glenn v. Rossler, 156 id. 161, 167; Gail v. Gail, 127 App. Div. 892, 898.) But such rules "yield to evidence of a different intention." (Wald's Pollock Cont. [3d ed.], 323; Roberts v. Brett, 25 L. J. [N. S.] C. L. 286.)

It is a restatement of what has 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.

Second Department, March, 1910.

[Vol. 137. (Roberts v. Brett, 25 L. J. [N. S.] C. L. 280.) With these rules in mind the contract may be examined. The contract mainly provides for a series of books, that is, for several books prepared in succession. By the contract the books in the series are connected by their appointment to the use of law students, to which purpose plaintiff claims Corporations, which was substituted for a simpler work on that subject, is not specially adapted. But he has invoked for Corporations all the benefits of the contract. The books were to be made one by one. An advance monthly payment of two dollars per page was stipulated, but no acceptance resulted therefrom, nor was that due until thirty days after the delivery of the manuscript of an entire work. But when so accepted it became the property of West according to the terms of the contract. But one or more books dissociated from others in the series afforded neither party the full benefit of the contract. Clark was insured advance payment at two dollars per page for what he did, but the further payment was conditional. Clark might finish a particular book and the samne be accepted and published, but the four dollars per page or any part thereof might never accrue. So West on his part might receive and publish the first work without any sales or without any net profits. To avoid this hazard of loss of benefit to either or both the books were made interdependent. Let this be illustrated. The contract called specifically for five works, Corporations, Torts, Bailments, Agency, and Pleading and Practice. It may be assumed that the books would have some value as parts of a series. But, passing that, it is readily seen that Clark was privileged to look for his compensation of four dollars per page for any one of the works, for instance, Corporations, to the net receipts of Corporations, and any one and all the other works published. To this all books published or to be published were pledged. And so for the second, third, fourth or fifth book, not only its net receipts, but also those of all prior and subsequent works in esse or in futuro were pledged. It is true that Corporations might earn such an improbably large net sum that onesixth thereof would equal the large amount found for the plaintiff at the rate of four dollars per page, but that was not Clark's sole reliThe first and following six months would come, and the accounting might show no, or insufficient, net profits for contribution to or discharge of Clark's additional compensation. But the

ance.

App. Div.]

Second Department, March, 1919.

The

"combined sales of all books" prepared and published were subjects of the accounting, and thereby book was added to book for Clark's security. But Clark is not the sole object of concern. books were all united in a joint venture for West's benefit, if benefit should come. But the very fact that he had agreed to take and publish five works placed upon him the hazard of profit or loss from such publication, and he was entitled to the five works upon which he had cast the chance of a fortunate issue. Clark's position is that he could prepare one and stop, or two, three or four, and stop. But could West accept one, two or three or four, and stop? West could not stop with any less than five, because he had agreed to accept five, and Clark was entitled not only to two dollars per page for the five works, but also to the opportunity to receive an additional four dollars per page. But if Clark was entitled to have net earnings of five books for his profit and payment, West was entitled to have the net earnings of five books to gain a sum to make such payments and return such profits to Clark and himself. (Cadwell v. Blake, 6 Gray, 402.) All the books were by the terms of the contract held in one leash, and were never liberated until all books had been published and Clark had received his full four dollars per page additional for every page in all five works, and to this end West bound himself to publish and push the sale of a book "so long as anything may be due" Clark "under the terms of this contract." If Clark received the four dollars per page for Corporations, such payment by the very words of the contract entered as a debit in the next accounting, and the net earnings of Corporations thereafter, as before, entered into the account for the purpose of compensating Clark for other works prepared and published. The plaintiff may not regard the contract as for his benefit alone; even so, it would be entire. But if Clark may draw out, when he so wills, West may be left with only a fragment of his series, and an undertaking whose prosperity contractually rests on five works is curtailed as Clark wishes. The payments are not at fixed periods. The accounting is periodic. Part payment of two dollars per page as an advance is intended to precede the whole performance of the contract, and becomes final upon acceptance of the books. But no period is fixed for the greater payment of four dollars per page.