Literary and Artistic Contracts. CH. XX. s. 4. merely creates a partnership determinable at will, and does not prevent the author, after determining it, from having the work published by another publisher, even before all the copies printed have been sold (u). The agreement upon which this was decided was by parol only, but it seems that the decision would have been the same if the agreement had been by writing not assigning the copyright. An author may sell his copyright partly only as to time, that is to say, for any limited portion of the time for which it endures, but not partly only as to locality; as to this he cannot do any thing less than assign the whole right given by English law (x). Divisibility of copyright. Particular contracts. Alteration of MSS. by publisher. Payment of author. Contract not to write for other pub. lisher. Reprinting of edited contribution The purchaser for a limited period may sell, after the expiration of that period, copies printed before its expiration (y). Upon the construction of contracts between authors and publishers, which are often loosely worded (2), the decisions are numerous. It will suffice here to state the following: Specific performance will not be decreed against either party (a), except in respect of a contract for the assignment of an existing copyright. Either party of course may sue the other for damages (b). It has been said that a publisher may publish MSS., of which he has bought the copyright, in an altered form (c), but this cannot be done in a manner that will injure the reputation of the author, as was ruled in the case of "Archbold's Criminal Pleading," of which the defendant published an incorrect third edition purporting to be prepared by the author, but in fact prepared by an anonymous barrister (d). Where a book is published on the terms that the publisher shall pay the author for the MSS. and he fails to do so, an injunction will not be granted to restrain publication until payment (e). If an author, having written a work for a publisher, agrees with such publisher not to treat the subject of it in any other work, he can be restrained by injunction when actual printing and publication in breach of the agreement take place, but not before (ƒ). An edited paragraph in a newspaper representing the contribution of a journalist in an abbreviated form is the property of the to newspaper. editor, not the contributor, and if it be reprinted in another newspaper, it is not the contributor, though he may have registered (u) Warne v. Routledge (1874), L. R., 18 Eq. 497, per Jessel, M. R. (x) See Jeffreys v. Boosey (1854), 4 H. L. C. 815. (y) Howitt v. Hill (1862), 6 L. T. 348. (2) For four forms, see Appendix to Shortt's Literature and Art. (a) Stevens v. Benning (1855), 6 De G. M. & G. 223, App. (b) Planché v. Coulburn (1831), 8 Bing. 14 (repudiation of contract by publisher); Gale v. Leckie (1817), 2 Stark. 107; 19 R. R. 692 (non-delivery of MSS. by author). (e) Crookes v. Peter (1861), 6 Jur., N. S. 1131. (d) Archbold v. Sweet (1832), 1 M. & R. 162; 38 R. R. 810, per Lord Tenterden, C.J. (verdict for plaintiff with 57. damages, but leave to move for a nonsuit, for which no motion was made); and see Lee v. Gibbings (1892), 67 L. T. 263. (e) Cox v. Cox (1853), 11 Hare, 118. (f) Brooke v. Chitty (1831), 2 Coop. Ca. Ch. t. Cot. 216. himself as copyright owner, but the editor, who has the right to sue the reprinting newspaper for infringement of copyright (g). CH. XX. s. 4. Literary and The author of every original painting, drawing, and photograph has the copyright therein by virtue of the Fine Arts Copyright Artistic Act, 1862, 25 & 26 Vict. c. 68, the odd effect of which, however, copyright. is that if a picture be sold without writing, the copyright is altogether lost, but if it be orally commissioned, the copyright vests in the employer (h). SECT. 5.-Contracts through Advertisement. In some cases a binding contract is made by the particular acceptance of a general offer to the whole public. time tables. Thus upon the published time tables of a railway company, a Railway, contract arises between the publishing company and any intending passenger that not only their own trains, but the trains of other companies will run in conformity therewith (i), though the mere granting of a railway ticket imposes no duty on the company to have a train ready to start at a definite time (j). ment of auction. Harris v. So an advertisement that an auction will be held at a particular Announcetime and place without reserve, constitutes a contract between the advertiser and the highest bidder that the goods advertised for sale shall be sold to him (k), though an advertisement of an auction Nickerson. not expressed to be without reserve has no similar effect, nor does it make the advertiser liable to recoup intending purchasers their expenses of attending the place named for the expected sale (1). An advertised offer of goods for sale by tender does not amount to a contract to sell to the person making the highest tender (m). An announcement of an examination for a scholarship does not imply that the scholarship will be given to the competitor obtaining the highest marks, although the trust deed under which the scholarship. scholarship was established so provide, so that no contract is created on which the successful competitor can sue the trustees (n). The offer of a reward to any person giving such information as Offer of shall lead to the conviction of an offender, or the discovery of lost (g) Springfield v. Thame (1903), 89 L. T. 242, per Joyce, J. (h) See Chitty's Statutes, tit. "Copyright," at p. 43, for the Act and cases up to 1894, since when it has been held that the copyright in a commissioned photograph belongs to the sitter and the nega tive, prima facie, to the photographer (Boucas v. Cooke, [1903] 2 K. B. 227, C. A.), and Nottage v. Jackson (1883) 11 Q. B. D. 627, C. A., has been distinguished in Melville v. Mirror of Life Co., [1895] 2 Ch. 531. (i) Denton v. Great Northern Rail. Co. (1856), 5 E. & B. 860. (j) Hurst v. Great Western Rail. Co. (1865), 34 L. J., C. P. 264. (k) Warlow v. Harrison (1858), 1 E. & E. 295. (l) Harris v. Nickerson (1873), L. R., 8 Q. B. 286. (m) Spencer v. Harding (1870), L. R., 5 C. P. 561. (n) Rooke v. Dawson, [1895] 1 Ch. 480, per Chitty, J., observing that the action could not proceed without the sanction of the Charity Commissioners. Offer for sale by tender. Announce ment of examination for reward. Advertisement. Offer of rewardcontd. CH. XX. s. 5. property, is a contract to pay the reward to the first person, and Contracts by the first person only (0), who shall give such information (p). The motive of such person is immaterial (q), and a constable, notwithstanding his public duty in the matter, is not disentitled as such from claiming the reward (1), even though the offender may confess after information given (s); though if the offender voluntarily surrender, the case is different, and the constable cannot claim the reward (t). If A. inform B. and B. inform C. the advertiser, and obtain the reward from him, A. cannot recover the reward from B. (u). For the reward to be recoverable, the information must be given to the advertiser or his agent or some person having authority to apprehend the offender (x). Williams v. Advertisement of reward "no questions asked." Offer to pay 100l. to any a specific on its failing. Carlill v. The advertisement of a reward for the return of stolen goods or which states that no questions will be asked, is made illegal by sect. 102 of the Larceny Act, 1861, 24 & 25 Vict. c. 96, which imposes a penalty of 50l., recoverable by penal action, for every such offence; and it is conceived that the reward promised in such an advertisement would be irrecoverable. An advertised offer to pay 100l. to any person using a specific person using preventive medicine in a specified manner for a specified period and finding it to fail, binds the advertiser to pay the 100l. to any person buying the medicine on the faith of the advertisement and using it as specified but contracting disease notwithstanding. So it was held by the Court of Appeal in the curious case of Carlill v. Carbolic Smoke Ball Co. (y), where the defendants had advertised that they would pay 100l. reward to any person contracting "the increasing epidemic, influenza, colds, or any disease caused by taking cold," after having used the smoke ball of the defendants "three times daily for two weeks, according to the printed directions supplied with each ball," and adding that 1,000l. was deposited with a bank, "showing their sincerity in the matter." Reward for information as to matter of pending suit. Advertisements offering a reward for information leading to the discovery and conviction of the authors of charges made in a petition for divorce constitute a contempt of Court (2) ; but a bonâ fide attempt to procure evidence by advertising a reward for it is lawful if not so worded as to prejudice one of the parties (a). (0) Lancaster v. Walsh (1838), 4 M. & W. 16. (p) Williams v. Carwardine (1833), 4 (q) Williams v. Carwardine, supra. (s) Smith v. Moore (1845), 1 C. B. 438. (u) Fallick v. Barber (1813), 1 M. & S. 108. (x) Lockhart v. Barnard (1845), 14 M. & W. 674. (y) Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256, C. A. (z) Brodribb v. Brodribb (1886), 11 P. D. 66. (a) Plating Co. v. Farquharson (1881), 17 Ch. D. 49, C. A.; Butler v. Butler (1888), 13 P. D. 73; disapproving Pool v. Sacheverel (1720), 1 P. Wms. 675. As to discontinuance of Government offers of reward, see Wharton's Law Lexicon, tit. "Reward." SECT. 6.-Stock Exchange Contracts. [See Melsheimer and Laurence on the Law and Customs of the Stock Exchange, 3rd ed., 1891; Brodhurst on the Stock Exchange, 1897; Stutfield on the Rules and Usages of the Stock Exchange, 3rd ed., by the Author and H. S. Cautley, 1901.] Buyers and sellers of Government or public company stocks or shares, though free to deal with each other direct, almost invariably do so through stockbrokers (b), who are (though not necessarily) members of a Stock Exchange, each party employing his own stockbroker, who in his turn almost invariably procures or parts with the stock which is being dealt in from or to a stock-dealer or stock-jobber in a "Stock Exchange, from which non-members are excluded. There the broker, without stating whether his instructions are to buy or sell, obtains both a buying and a selling price from the dealer, and if the two prices are sufficiently close, declares himself as either a buyer or seller at the price named. The result is that the broker and dealer are mutually bound by Stock Exchange practice, and both principals and brokers are mutually bound by law to complete the transaction at the close of a periodical (generally fortnightly) settlement. Frequently, however, by an arrangement of all parties, called a "continuation" or "carrying over," completion is postponed to a subsequent settlement, and so on to further settlements for small payments, agreed for on each continuation and falling due at the close of each settlement. To arrangements of this kind the terms "contango" and "backwardation" are respectively applied. This elaborate system of dealing, by its acceleration of bringing buyers and sellers together, and by the facility it gives to fixing prices, has been generally considered to work satisfactorily (c). CH. XX. s. 6. Stock Exchange Contracts. A party giving a stockbroker an order to buy or sell on a Stock Stock Exchange Exchange authorises his order to be carried out according to the Rules. general usages of that Exchange (d), except so far as without his knowledge they are illegal (e) or unreasonable (f), and subject to these exceptions undertakes to indemnify the stockbroker against any liability incurred by him under the Rules of the Stock Exchange (g). The greater part of the usages of the London (b) Stockbrokers are also commonly called "brokers," but a broker in the strict sense of the term is middleman for both parties. As to "outside brokers" see p. 544, infra. (c) See per Cockburn, C.J., in Grissell v. Bristowe (1868), L. R., 4 C. P. at p. 48, and per Lord Blackburn in Speight v. Gaunt (1883), 9 App. Cas. at p. 21. (d) Grissell v. Bristowe (1868), L. R., 4 C. P. 36, Ex. Ch.; Nickalls v. Merry (1875). L. R., 7 H. L. 530. (e) Neilson v. James (1882), 9 Q. B. D. 546, C. A.; Perry v. Barnett (1885), 15 Q. B. D. 388, C. A. In both these cases the Banking Companies (Shares) Act, 1867, 30 & 31 Vict. c. 29 (Leeman's Act), invalidating contracts for sale of unnumbered bank shares, has been disregarded by Stock Exchange usage. (f) Melsheimer, p. 36; Stutfield, p. 28. (g) Harker v. Edwards (1887), 57 L. J., Q. B. 147. CH. XX. s. 6. Stock Exchange (h) is incorporated in 183 Rules, which are frequently, though not materially, being revised. Stock Exchange Contracts. Rules of London Stock Brokers and Only members recognised, Rule 54. Bargain with non-member. Legal proceedings. Arbitration. No private dealing with member of firm. Bargains with clerks. Speculative bargains with officials, &c. By Rule 43, which marks an important distinction between the two classes of members-dealers (also sometimes styled jobbers) and brokers-of the Stock Exchange: The Committee will not allow members or their authorised clerks to act in the double capacity of brokers and dealers; nor will they sanction partnerships between brokers and dealers. By Rule 54, which repeats a rule of very long standing :The Stock Exchange does not recognise in its dealings any other parties than its own members; every bargain, therefore, whether for account of the member effecting it, or for account of a principal, must be fulfilled according to the rules, regulations, and usages of the Stock Exchange. The following Rules now (July, 1904) in force may also be found useful: 55. Any member issuing a contract for the purchase or sale of stock or shares effected with a non-member shall explicitly notify this fact on the face of the contract, which must also explicitly state when a brokerage is receivable from both buyer and seller. 56. No member shall attempt to enforce by law a claim arising out of Stock Exchange transactions, against a member or defaulter, or against the principal of a member or defaulter, without the consent of such member, of the creditors of the defaulter, or of the Committee. The Committee have power to interfere in cases where the principal of a member shall attempt to enforce by law a claim which is not in accordance with the rules, regulations, and usages of the Stock Exchange, and will deal with such cases as the circumstances may require. 57. If a non-member shall make any complaint against a member, the Committee shall in the first place consider whether the complaint is fitting for their adjudication, and in the event of the Committee deciding in the affirmative, the non-member shall, previously to the case being heard by the Committee, sign a contract in writing as follows (i) :— 58. If a member shall do a private bargain, either for money or time, with an individual member of a firm on the Stock Exchange, such bargain being wilfully concealed from the firm, both members shall be expelled. A resolution bringing a member under the operation of this rule must be carried by a majority of three-fourths of a Committee consisting of not less than twelve members, and must be confirmed by a majority of a Committee present at a subsequent meeting specially summoned. 59. If any member or authorised clerk shall do a bargain, either for money or time, with an authorised or unauthorised clerk, for account of such clerk, they shall be liable to expulsion. . . . 60. Members are not allowed to transact speculative business, directly or indirectly, for or with officials or clerks in public or private establishments without the knowledge of their employers. (h) There are also Stock Exchanges at Liverpool, Manchester, Birmingham, and other large towns. (i) The consent is to be bound by the reference, and to carry into effect the award in the same manner as if the nonmember were a member of the Stock Exchange, &c. |