Second Department, March, 1910. [Vol. 137. When the contract was made it could not be known when it would be paid, or whether it would ever be paid, nor could that be known until the last book had been exploited. Of course each work is a separate item, but that is consistent with an entire contract, although aiding divisibility. The intention governs. Does Clark intend to prepare five books, or none? Does he intend that West may take one book and stop? Does West intend to contract for five books and no less? Does he intend to contract that he may stop publication after less than five books shall have been published? Does he intend that Clark may stop short of the five? I think that neither party had such intention. But the learned counsel for the plaintiff in his brief says: "A day was fixed for the payments on account of Corporations. That day was to arrive, or might arrive, and actually did arrive before the time for the completion of Torts. There fore, the completion of Torts is not a condition precedent to plaintiff's right to recover the stipulated payments for Corporations." Did the day of payment arrive? When was it? When the two dollars was paid? If so, nothing now is due. Was it on the day of accounting? Payment would only then be due in whole or in part, if the net earnings so showed. The nearest plaintiff is to this rule is the statement that for Clark the day for payment of the four dollars might arrive at some time before all the books are published. But West did not promise to pay before "the time when the consideration" for the money is "performed." He promised to pay in full for published books when Clark had so far performed as to any and all publications that the net profits of the enterprise to the time of accounting would, if divided in a fixed ratio, give Clark additional compensation up to four dollars per page. But Clark was the very initial source of such earning, and his services, not on one book but on multiplied books, were his stipulated contribution to the fulfillment of the conditions that made payment possible. (Weed v. Clogston, 98 Mass. 147.) When that indefinite period for payment came, Clark was entitled to his maximum compensation for any and all books prepared and published, but not, thereupon, to abandon the contract and refuse to do the acts that were the consideration for the money. As I understand the plaintiff's position, it is that after preparing one book he could abandon the contract, recover payment therefor, and leave West to recoup his damages for App. Div.] Second Department, March, 1910. the unperformed part. (Isaacs v. New York Plaster Works, 67 N. Y. 124; Capron v. Thompson, 86 id. 418; De Kay v. Bliss, 120 id. 91.) Such splitting of the contract is foreign to the intention and language of the contract and utterly subversive of the contemplated advantages of the parties. But the plaintiff may recover upon the contract, although entire, if the defendant by his breach defeated its beneficial fulfillment by the former. The contract provides that the copyright should be taken out by the plaintiff, defended by him, and assigned to the defendant "subject to the conditions of this contract." The defendant caused the copyright of the three volumes on Corporations to be taken in the name of his publishing company. Clark knew immediately after each volume was issued of this breach of the contract. Indeed, he knew of the application for the copyright of volume 3. His evidence is that after discovery of the unwarranted copyrighting of volume 1 he wrote West in angry protestation. He states that after volume 2 was issued he wrote again. Neither letter is produced. While the application for volume 3 was pending, a produced letter shows that he insisted upon compliance with the contract. To this letter West replied on May 6, 1902, acknowledging unintentional departure from the contract, and offering to have a change made in the application, suggesting, however, reasons for not doing so, means of correcting harm flowing from the error, and asking that he be advised at once if Clark was not satisfied. Clark replied on May twelfth, "In regard to the question of copyright of Corporations, if my contract were with any one but you, I would want the same to be in my name, and assigned, so that the assignment 'subject to the conditions of the contract' would protect me against bona fide purchasers, as I think would be the case under the Act of Congress relating to registration of such assignments. But I am perfectly satisfied to leave the matter to you. You can give me a paper after the book is published showing exactly what my rights are." May twentieth, West replied: "In the matter of the copyright of Corporations' I am ready to execute or have executed any paper that is necessary for the protection of your rights. We will, if you please, discuss this matter at our next interview unless you previously prepare such a paper as APP. DIV.-VOL. CXXXVII. 3 Second Department, March, 1910. [Vol. 137. you desire." So the matter remained until May, 1903. Meantime Clark completed Corporations, volume 3, and the same was published. He began on January 1, 1903, the work on Torts, and continued to about May 2, 1903, when he had completed 400 pages. On April 26, 1903, as Clark testifies, he demanded an assignment of the copyright on Corporations, which West refused, but the latter offered him a bond to protect him. On May second, Clark wrote that he had been advised that the copyright was irremediably void, and declined to continue under the contract, but expressed willingness to continue Torts under a new contract. On May seventh, West replied that he had legal advice that the copyright was valid, that he was "prepared to meet any attack upon said copyright, and, as provided in our contract, you will, of course, also protect same," and adding: "I am surprised that you should at this time raise any question regarding the copyrighting of Corporations' in the name of Keefe-Davidson Company, in view of the language in your letter under date of May 12, 1902, 'I am perfectly satisfied to leave the matter to you, you can give me a paper after the book is published, showing exactly what my rights are.' I have always been willing to give such a paper. Your only objection has been that the rights of some bona fide purchaser might intervene, and any danger of that kind would, I imagine, be better provided against by bond or other security, than by stopping work on 'Torts' and going to work for other parties." The next day Clark entered the employment of another company. It is considered that Clark had a bare technical right to stop work. It was proper that Clark should apply for and procure the copyright in his name, and so the contract provided. He obligated himself to defend it, and he was entitled to condition the assignment upon West's performance of the contract. West disordered these rights and obligations, later acknowledged his error and offered to make amends by assignment and reassignments of the copyright. It was to this letter and its contained suggestions that Clark replied expressing his satisfaction, "to leave the matter to you," to which West replied, “I am ready to execute or have executed any paper that is necessary for the protection of your rights." When, however, Clark demanded protection, West expressed his willingness to carry out his earlier offer, but suggested a bond, to which he coupled a demand App. Div.] Second Department, March, 1910. that Clark should protect the copyright. How could and why should Clark protect the copyright illegally taken out? This added not only a burden beyond the contract, but perchance impossible to sustain. I do not think that the plaintiff waived the breach. The matter was left in abeyance awaiting West's promise to make amends pursuant to his letter. But when summoned to act, West expressed willingness but sought to place the burden of defending a doubtful copyright upon Clark, the unoffending party. I think that Clark did not absolutely waive his right by awaiting West's promise to correct his error. But defendant charges that Clark agreed not to write for others and did write for another company an article on Burglary. Plaintiff makes several answers to this accusation, among others that the work was done without remuneration, to help out a sick friend. I conclude that Clark's act is not within the spirit or letter of the contract. The restriction related to employment by another. The plaintiff merely succored a sick friend. That is too trivial and remote to be declared by the court a breach. But the relief sought by Clark and afforded by the court is not warranted in an action in equity. The interposition of the court in equity is invoked upon the theory that the defendant should be compelled to vest a valid copyright in him, and account for the net profits, or, in lieu of vesting the copyright in him, West should pay a sum of money, and this last has been directed on the theory of a recovery upon quantum meruit, or for the value of the contract, as in an action at law. But the very reason given by plaintiff in his letter of May 2, 1903, for proceeding with the work was that the copyright was void and that "there is no way in which this can be remedied." He wrote: "Even an assignment from the Keefe-Davidson Law Book Company [the publishing company] to me, for which I asked you when I saw you on Sunday last, and which you said you are not willing to give, can do me no good now. I am, therefore, in the position of having nothing to secure to me my interest in this work, which amounts to about thirteen thousand dollars, except your own personal liability, with all the risk of your death and subsequent complications. If the copyright had been taken out in my name, as our contract expressly provided, and then assigned to vou, subject to the terms of our contract, things would be very different. Furthermore, this complication, which, owing to Second Department, March, 1910. [Vol. 137. my ignorance of the copyright law, I did not know of until last Saturday, renders it impossible in the very nature of things for you to perform the contract as to any future books I might write under the contract. The contract makes the sales of every book I might write liable to contribute to paying me what might be coming to me on every other book. As the book on Corporations is not validly copyrighted, or, if by chance it is copyrighted, as I have not the lien on the book which I was entitled to under the contract, I may not get the benefit from that book in helping to pay royalties on other books. In view of this state of matters, I am not willing to write another book under that contract. If you wish to have me write any other books, it will have to be under another contract." By what justification, then, does Clark come into a court of equity asking relief? He refused to go on with the contract upon the very ground that West could do nothing to restore him to his rightful status. He did not rescind the contract, nor does he seek to do so in this action, nor has he made any tender that would entitle him to rescission. He does not in his complaint ask for specific performance of the entire contract. He is not entitled to specific performance, as he did not at any time tender performance on his part, but distinctly refused performance. He asserted breach of the contract, and the impossibility of curing it. The plaintiff in no way commends himself to a court of equity. Hence the court could not, in view of Clark's attitude to the contract, grant such relief, and if it could not grant it, it could not award damages in lieu of relief to which the plaintiff was not entitled. Clark's remedy was an action at law for breach of contract, and such remedy the trial court has afforded him, and I find no objection to the tribunal on the part of the defendant. By what way the judgment was reached remains to be considered. The complaint in the first cause of action does not state the value of plaintiff's services nor the value of his manuscript, but does allege "the reasonable value and the contract price of the copyright of said treatise on Corporations" to be $20,814. In the second cause of action, which relates to torts, the "reasonable value of plaintiff's said manuscript and literary property" is stated. The court found that the "contract price of the copyright of said treatise upon Corporations was and is $6 per printed page of the standard size, and amounting in all to the sum of |