West (defendant) entered into a contract with Clark (plaintiff) which provided that Clark was to write law books for publication by West. West was to pay Clark $2 per page for each book written. However, the contract contained a condition which provided that if Clark abstained completely from intoxicating liquor during the writing period, he would receive $6 per page. Clark failed to completely abstain from intoxicating alcohol while writing the books, but argued that at no time did his drinking alcohol interfere with his work. Additionally, Clark believed West waived this provision by continuing to accept work from Clark despite knowing Clark was not adhering to the condition. The parties suffered a disagreement after Clark completed a three-volume set of books on corporations. Clark claimed that West breached the contract by copyrighting the book in the name of a third party and brought an action to recover amounts due to him under the contract. West demurred to the complaint on the ground that Clark failed to state sufficient facts to support a cause of action. The special term overruled the demurrer, but the appellate division reversed and sustained the demurrer.