De Brumoff v. Werner Co. — 88 N.Y.S. 361

Majority

p. 361

DE BRUMOFF v. WERNER CO.

(Supreme Court, Appellate Term.

May 19, 1904.)

Headnote

1. Contracts—Stipulations—Waiver.

Where plaintiff informed, defendant that he could only negotiate with it upon the basis of a cash payment, and thereafter defendant frequently and insistently urged plaintiff to come to the city to negotiate, defendant thereby waived the condition of its original proposition, which was to pay plaintiff’s expenses if he would negotiate on the-basis of a royalty.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Maurice De Brumoff against the Werner Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.

Morgan & Mitchell (Rollin M. Morgan and Arthur L. Marvin, of counsel), for appellant.

Marsh & Wever, for respondent.

The defendant’s first offer to pay the expenses of plaintiff’s visits to New York seems to have been conditioned upon the willingness of the latter to negotiate upon the basis of a royalty upon the books as sold. His letter of July 25th, written' before he received defendant’s offer, contained the unequivocal statement that he could only negotiate upon the basis of the payment of at least $10,000, no matter how many books might be sold. After the receipt of that letter the defendant knew that plaintiff would not accept a royalty only upon the. books sold, but must be paid at least $10,000, and that he was willing, if necessary, to come to New York. After having been fully apprised of these facts, defendant frequently and insistently urged plaintiff to make the trip. Under these circumstances, the defendant must be deemed to have waived the condition attached to its original proposition, and so the plaintiff evidently understood. .The judgment is right, and should be affirmed, with costs.

Judgment affirmed, with costs. All concur.