Wednesday, December 25, 2013

Cobaugh v. Klick-Lewis, Inc. case brief

Cobaugh v. Klick-Lewis, Inc. case brief summary
561 A.2d 1248 (Pa.Super. 1989)

Appeal from an Appellate Division of the Supreme Court in the Second Judicial Department (New York) order that reversed an earlier interlocutory judgment and sustained defendant's demurrer to plaintiff's complaint that sought additional compensation under a publication employment contract between the parties.

The parties entered into a publication employment contract. The contract bound plaintiff to abstain from alcohol during the course of his employment in order to receive a higher per page royalty rate. Plaintiff did not entirely abstain from drinking liquor while he was writing and defendant in turn refused to pay plaintiff the higher per page rate. Plaintiff brought suit to recover the higher royalty rate after one of his books was published. The trial court reversed an early interlocutory judgment and sustained defendant's demurrer.


  • The appellate court reversed the trial court's grant of defendant's demurrer. 
  • The court held that plaintiff's complaint contained sufficient allegations that, if proven, would establish that defendant expressly waived the sobriety condition precedent by, with full knowledge of plaintiff's non-observance of the alcohol abstinence stipulation, not only accepting plaintiff's completed manuscript without objection but repeatedly assuring plaintiff that he would receive the higher royalty rate.
Appellate court reversed, holding that plaintiff alleged sufficient facts in his complaint that, if proven, would establish that defendant expressly waived the condition precedent of plaintiff's sobriety by knowing plaintiff did not comply with the stipulation, accepting plaintiff's manuscript without objection, and assuring payment of the higher royalty rate.

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