## Facts

- A publisher and an author entered a two-book publishing agreement requiring delivery of final manuscripts “satisfactory to Publisher in content and form,” in exchange for advances and royalties.
- The first novel was accepted and published after substantial editorial work by the publisher’s editor.
- For the second novel, the author received a $50,000 advance on signing and was to receive an additional payment upon the publisher’s acceptance; the final manuscript was due October 1, 1978.
- The author missed deadlines and delivered only partial material by 1980; a completed manuscript was submitted in August 1981.
- After review, the assigned editor and supervisor concluded the manuscript was unpublishable and could not be salvaged through ordinary editing; a rewrite by a third party was discussed but not accepted.
- The publisher rejected the manuscript, canceled the contract, lost a contingent paperback-rights arrangement, and demanded return of the $50,000 advance; the author refused.
- The publisher sued for return of the advance; the author counterclaimed for anticipated earnings, alleging wrongful rejection and inadequate editorial assistance.

## Issues

1. Under a publishing contract requiring a manuscript “satisfactory to Publisher,” did the publisher breach by rejecting the manuscript in bad faith?
2. Did the publisher breach by failing to provide adequate editorial assistance, based on contract terms or prior dealings on the first book?
3. Did the publisher waive its right to recover the author’s advance by continuing to work with the author and delaying rejection?

## Decision

- The court affirmed dismissal of the author’s counterclaims.
- The court held the publisher’s rejection reflected honest dissatisfaction and thus satisfied the good-faith standard governing the satisfaction clause.
- The court held that, even assuming a duty of editorial assistance existed, the publisher fulfilled it; prior extensive editing on the first book did not create a continuing obligation to provide the same level of editorial intervention.
- The court reversed dismissal of the publisher’s claim for the advance.
- The court held the publisher did not waive its right to recover the advance; cooperation and efforts to salvage performance were not unequivocal conduct showing intentional relinquishment.
- The case was remanded for entry of judgment in favor of the publisher for recovery of the advance and related relief consistent with the opinion.

## Legal Principles

- A satisfaction clause conditioning acceptance on the publisher’s satisfaction is generally subject to a subjective standard constrained by an implied duty of good faith; the decision is valid if dissatisfaction is honestly held.
- Courts avoid substituting their own literary or editorial judgment for a publisher’s judgment when the contract allocates discretion to the publisher and the publisher acts in good faith.
- A prior course of dealing involving extensive editing does not, without clear agreement, impose an ongoing contractual duty to provide the same level of editorial assistance on later works.
- Under New York law, waiver requires a voluntary and intentional relinquishment of a known right; it must be shown by express statement or unequivocal conduct inconsistent with enforcement.
- Continued cooperation, delay in exercising a remedy, and attempts to cure or complete performance generally do not constitute waiver of contractual rights to recover an unearned advance after good-faith rejection.

## Conclusion

The court enforced the publisher’s contractual discretion under a good-faith satisfaction clause, rejected the author’s claims of wrongful rejection and inadequate editorial support, and held the publisher’s cooperative efforts did not waive its right to recoup the advance after a good-faith rejection.


Doubleday & Co. v. Curtis, 763 F.2d 495 (2d Cir. 1985)