Can you sue someone for money that has been earned but is not yet payable?

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Can you sue someone for money that has been earned but is not yet payable?

We have a 3 month/$10,000 contract with an author where our fee is accumulated at a regular rate but paid based on the sales of the book and the first payment is due in 2 months. The author terminated the contract after accumulating a 3,000+ bill. They are no claiming that they are unhappy with the work (which was never brought up during the month) and are offering $450 to consider everything paid in full and have refused to pay the $3,000 as scheduled in the contract. Can I sue now or must I wait until the first payment is due and can I pay for the full amount due even if they have not earned it?

Asked on August 13, 2011 California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

1) Until payment is due and is not made (or not made in full; partial payment will not discharge the obligation), you don't have a cause of action. You may be certain the author will default, but you don't have a claim until the payment date passes. That said, you can sometimes sue earlier if the other side has clearly repudiated the contract, but if its within 2 months of the date, it may be better to wait than file now and potentially have to refile again, if a court concludes the repudiation was not clear enough.

2) Whether you can sue for the whole amount or not depends on what the contract says. If the author has to pay the $10,000 no matter what, then you can sue for the whole thing. If there are conditions under which they would not have to pay the whole $10k--i.e. they only pay based on what has been earned--then you can only sue for the whatever amount you can prove they would have to pay to you.

You should probably retain an attorney to help you, given the amount at stake. You should then be guided by your lawyer's advice, after (s)he has had a chance to review the contract, all communications, and the circumstances.


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