Open main menu

Page:Harvard Law Review Volume 2.djvu/280

This page needs to be proofread.

262 ^^^ VARD LA W RE VIE W,

received from the latter, and when the purchase is made, he debits him with the price ; so that the relation between the two is never any other than that of debtor and creditor.

When a book is published and sold by the publisher on his own account, under an agreement by him with the author to pay the latter either a fixed sum for every copy sold, or a fixed per- centage of the gross proceeds of sales, the publisher is not accountable to the author, for the books sold (and hence their pro- ceeds) are the property of the publisher — not of the author ; and the money payable to the latter is merely the price of his copy- right in the books sold. The relation, therefore, between the pub- lisher and the author in such a case is merely that of debtor and creditor. The same is true also of a manufacturer who works a patent, under an agreement with the patentee to pay him a royalty on all the patented articles manufactured and sold.^ If indeed the author or the patentee were by the agreement entitled specifically to a share of the net proceeds of sales,^ he would be a co-owner of such net proceeds with the publisher or manufacturer, and, as the agreement would establish a fiduciary relation between the former and the latter, the former would be entitled to an account and pay- ment of his share.

An insurance broker, according to the practice at Lloyds, is not accountable to his principal for money received .by him from underwriters in payment of losses ; for the broker effects all insur- ances on his own responsibility, crediting the underwriters and deb- iting the assured with the amount of the premiums ; and, when a loss happens, he debits the underwriters and credits the assured with its amount. The broker therefore deals as a principal both with the underwriter and with the assured, and his relation with each is simply that of debtor and creditor ; and the underwriter and the assured are strangers to each other.®

The relation between a banker and his customers is so plainly that of debtor and creditor, that one is surprised at finding that the former was ever supposed to be accountable to the latter ; and yet a case was carried to the House of Lords mainly on that question.* Money deposited by a customer with his banker must

1 Moxon V, Bright, L. R. 4 Ch. 292.

> Such was the fact in the late case of Pratt v, Tuttle, 136 Mass. 233.

• Dinwiddie v, Bailey, 6 Ves. 1 36.

  • Foley V, Hill, 2 H. L. Cas. 28.