Division of Profits on Copies Sold above Specified Number. Publisher Bankrupt. · Author claims as Partner in Unsold Stock. In a case in the Irish Bankruptcy Court in 1848, it appeared that Curry & Co. had published three novels by Charles Lever, under an agreement that they should bear the expense of publication, and pay to the author a specified sum for a certain number of copies, and should divide with him the net profits on the copies sold beyond that number. While a large to the contracting parties, and not capable of vicarious performance, seems to have been of the opinion, that certain rights under the contract might have passed to the plaintiffs. He also had the impression that not even the original publishers, had they retained their rights and position under the contract, would have been entitled to the injunction prayed for in this case. He said: "In acceding, as I do, to the propriety of the course taken by the ViceChancellor, I consider it as perfectly consistent with the notion, that the plaintiffs may have some ground of claim under the agreement of December, 1840, on which their bill is founded; may be entitled to have an account or to maintain an action or actions against one or both of the defendants. The only question, I repeat, with which we are dealing, is one of granting or not granting an interlocutory injunction; and for that purpose it must be observed that such interest, if any, in the copyright of Mr. Forsyth's work on Composition with Creditors, as the other parties to the agreement acquired under it, they acquired, I apprehend, not exclusively of Mr. Forsyth, but by way of joint adventure with him, or of partnership with him, in respect and for the objects of which he undertook the fulfilment by himself personally of certain duties to them, and they undertook the fulfilment by themselves personally of certain duties to him; nor on either side, without the consent of the other, could there be a vicarious performance, a performance by deputy or by assignee, of the duties thus undertaken. At "If this opinion is correct, the plaintiffs clearly cannot do so; but, if incorrect, it does not of necessity follow that such an injunction ought to be granted to them. For in them, however trustworthy, Mr. Forsyth has not agreed or intended to place confidence; with them, however respectable, he has not consented to associate himself. In the way of specific performance, there must be at least as much difficulty between him and them as between him and the other parties to the agreement of 1840. I do not assert that the plaintiffs have not, or that they have, been wronged. If wronged, they may proceed for damages or compensation, or an account; but any such injunction as that now sought seems to me plainly impossible. The appeal, not supported in my judg ment by Morris v. Colman, 18 Ves. 437, or Lumley v. Wagner, 1 De G., M. & G. 604 (cases which I do not question), appears to me opposed by a great body of binding authority, as well as by principle, and one of course to be dismissed with costs." 6 De G., M. & G. 228. number of printed copies remained unsold, Curry became bankrupt, when Lever claimed to be entitled as partner to one-half of the unsold stock, and to have a special lien on the other half, entitling him as a preferred creditor to be paid in full for whatever balance might be due him. The commissioner held that, if Lever was a partner in the unsold stock, he was a mere dormant and secret partner; and, as the whole of the stock had been in the possession and disposition of the bankrupt, it passed to the creditors under the Bankrupt Act; and that, for the same reason, Lever had no special lien on it. The commissioner said that the question as to whom the copyright belonged was not within the jurisdiction of the court; but he expressed the opinion that, as Curry had been permitted to advertise himself as the owner, the copyright should be dealt with as his property in bankruptcy.2 - Author Agreement Indefinite as to Duration and Number of Copies. Division of Profits. Publisher may fix Selling Price. may End Agreement by Proper Notice. The contracts made by Charles Reade and his publisher, Richard Bentley, which came up for judicial construction in the two suits brought by the former against the latter, were similar to that discussed in Stevens v. Benning; except that in the agreements of Reade and Bentley there was no provision binding on either party for the publication of a second or any following edition of the books. In the first contract, made in 1852, it was agreed that Bentley should publish at his own expense and risk Reade's novel Peg Woffington; and that, after certain expenses and allowances were deducted, the profits of every edition printed should be divided equally between author and publisher. In 1853, a similar agreement was made by the same parties for the publication of Christie Johnstone. The price at which the books were to be sold was not specified. An edition of five hundred copies of Peg Woffington having been published and sold at 108. 6d. a copy, Bentley, against the protest of Reade, prepared to issue an edition of the same novel at 3s. 6d. a copy. The latter notified the former not to publish, served a written 16 & 7 Will. IV. c. 14, s. 86. Repealed by 20 & 21 Vict. c. 60, s. 2; but see 35 & 36 Vict. c. 58, s. 5. 2 In re Curry, 12 Ir. Eq. 382, 390. notice for a dissolution of the partnership, if any existed, between them, and applied for an injunction to restrain the publication of the second edition. Vice-Chancellor Wood held that under the agreement the publisher was the proper person to fix the price; that he was at liberty to continue publishing successive editions until he received notice to end the agreement; and that such notice, to be operative, must be given before any expense on a future edition had been incurred. The court, therefore, refused to interfere with the sale of the second edition, for which the publisher had made disbursements before receiving from the author notice to end the agreement.1 1 Reade v. Bentley, 3 Kay & J. 271. In the contract were these words: "The books sold to be accounted for at the trade sale price, reckoning twenty-five copies as twenty-four, unless it be thought advisable to dispose of any copies, or of the remainder, at a lower price, which is left to the judgment and discretion of the said Richard Bentley." The meaning of this provision was thus explained by the Vice-Chancellor: "There being this special clause, showing that in a particular case the diminution of price is to be left to the discretion of the publisher, it was argued that the inference is, that the publisher has no such discretion, except in the particular case there mentioned. It is quite obvious that this clause was introduced with no such view, but because Mr. Bentley is to bring out the work, and, in bringing it out, he is to fix a certain price to the trade. He is aware that there are persons who are in the habit of purchasing all these works for resale. There is a certain quantity in the first instance offered to the trade, as it is called, who send in their orders, each buyer for a certain quantity of copies, and it is brought out to the trade at a price which is fixed upon each edition. Then it might happen that some copies would remain unsold. Mr. Bentley first agrees to account with the author for all copies at the trade price; but then, as that might be rather too hard upon the publisher, who has had all the expense of bringing out the work, it is agreed, that, if any copies remain unsold, he is to have liberty, as regards that edition, to dispose of the unsold copies at a lower price. That is the obvious meaning of this clause; and it has no reference to the general question of fixing or not fixing the price." Ibid. 277. " The question then arises," said the Vice-Chancellor, "if Mr. Bentley was to publish at his own risk, who was to fix the price of the work? The agreement is entirely silent upon this point, and it is left to be inferred from the nature of the contract between the parties. I am decidedly of opinion, that the plaintiff's view, that he was to have a voice in fixing the price, is not consistent with the terms of the agree ment. I think, if he intended to retain such a power, it is scarcely possible to conceive that he should have allowed a term so important to be omitted from the agreement; and, when I look to the words of the agreement, I see that Mr. Bentley is to be the publisher, that he is to bear the expense, and to make all payments; and considering also that it is the business of the publisher to make his expenses and profits balance, that he is the person to whom the author has intrusted that department, the publisher taking the whole charge and risk, and the whole duty of bringing out the work as he thinks Soon after, when Bentley had published two editions of Peg Woffington and four of Christie Johnstone, and was intending to issue a new edition of each novel, but had made no outlay for that purpose, Reade again served on him notice to end the agreements between them, and applied for an injunction against such intended publication. The direct issue now raised was, whether Reade had the power to end the agreements, and prevent the publisher from printing an edition on which no expense had been incurred. Vice-Chancellor Wood was of opinion, that, if the author were powerless to end the agreement, the publisher would be at liberty to issue any number of successive editions, and at the same time prevent the author from publishing a single copy. Moreover, as it had been held in the first suit of Reade v. Bentley that the publisher was the proper person to fix the selling price of the book, he would have, by parity of reasoning, the power to determine the time of issuing a new edition. He might thus be enabled to postpone indefinitely the publication of an edition for which there might in reality be a demand. In this case, also, the author would be powerless to publish. On the other hand, the author could. not, under the agreement, compel the publisher to issue more than the first edition. Such "a construction," said the ViceChancellor, "which would leave the author fast bound, and the publisher entirely free, after the publication of one edition, is not a reasonable construction to adopt in considering the effect of an agreement of this character." The court decided that no interest in the copyright had been transferred, and that the agreement created no "more than a joint adventure," terminable by the author, with a revocable license to publish. As the contract provided for an adjustment of accounts when the profits of each edition should be ascertained, the time of making such adjustment was held to be the proper time for ending the agreement. The injunction was, therefore, granted best for the interest of both parties, it seems to be necessarily incident to the duty which he has to perform, that he should have the right also of determining the price at which the work should be brought out. I think the construction of the agreement is plain enough up to this point, that the de fendant, the publisher, is to fix the price of the work; that he is to choose the embellishments and every thing else connected with its publication; and that he is to do this for all editions which should be brought out during the subsistence of the agreement." 3 Kay & J. 275. to restrain the publication of the editions on which no expense had been incurred by the publisher.1 1 Reade v. Bentley, 4 Kay & J. 656. "Lord Justice Turner," said ViceChancellor Wood, looked upon the agreement in Stevens v. Benning, in the double light of a license and a partnership; speaking, however, less decidedly as to its being a partnership. He says, 'Next, if there was a partnership, then, if the agreement does not affect the copyright, the partnership was not in the copyright, but in the copies printed under the license contained in the agreement' (6 De G., M. & G. 231); viewing it, therefore, as a license for the publication of the work, and then a joint adventure between the author and publisher in the copies so to be published. If that were the effect of the agreement in the present case, the question would still remain, whether the license be irrevocable. "In the former suit between these parties, 3 Kay & J. 271, the plaintiff claimed a right to prevent the publication of an edition with respect to which the defendant had been allowed to incur various expenses before the plaintiff had taken any steps to determine the joint adventure between them. In the present suit, his claim is wholly different. He does not attempt to interfere with the publication of an edition which the defendant had commenced, and incurred expense in preparing for publication, before he exercised the option of determining the agreement. His claim is limited to editions about which no such expense had been incurred by the defendant; and his argument is, that, unless he has a right to determine the agreement as to all such editions, the consequence will be, that, during the whole of the defendant's life, he may be under an obligation to the defendant, while the defendant will be under no reciprocal obligation to him. It is true, that, according to Stevens v. Benning, a license like the present would, I apprehend, be restricted to the defendant personally, and would not extend to his executors, or to any future partner or assignee; but, if the defendant's construction be correct, it follows that so long as he lives and is willing to continue publishing fresh editions of the work, so long, according to the doctrine in Sweet v. Cater, the plaintiff will be precluded from asserting a right to publish any competing edition. The defendant could compel the plaintiff to abstain from publishing a single copy of the work, so long as he expressed his readiness to continue publishing. But the plaintiff has no reciprocal power. He could never compel the defendant to publish more than a single edition of the work. His powers are limited to what the contract gives him; and, according to the contract, when the defendant has published a single edition the contract on his part is fulfilled. That is a position of considerable hardship for an author, and one which ought to be clearly shown, upon the face of a contract, to have been contemplated by the parties who entered into it. Besides, the plaintiff might be placed in a position of still greater hardship, if the defendant's construction be correct. In the former suit between the parties, in reference to this agreement, I held, that, although the agreement is silent on the subject, yet inasmuch as the defendant was to bear the risk of the publication, he was the proper person to fix the price; and, by parity of reasoning, he would be the proper person to fix the time and mode of publication; and, in the exercise of his discretion on that subject, it might well happen that the defendant, acting perfectly bona fide and upon an honest conviction that circumstances were unfavorable for the publication of a further edition, would decline indefinitely to publish, but without resigning his contract. The author, at the same time, might be of a contrary opinion, and yet for months or even years he might be kept in suspense, and pre |