46 Cal.2d 715 (1956) 299 P.2d 257

VICTOR DESNY, Appellant,
v.
BILLY WILDER et al., Respondents.

Docket No. L.A. 23892.

Supreme Court of California. In Bank.

June 28, 1956.

*723 Milo V. Olson and Frank DeMarco, Jr., for Appellant.

Pacht, Ross, Warne & Bernhard, Isaac Pacht and Gordon Stulberg as Amici Curiae on behalf of Appellant.

O'Melveny & Myers, W.B. Carman, William W. Alsup, Everett B. Clary, Philip F. Westbrook, Jr., Louis W. Myers, Sidney Justin and Melville B. Nimmer for Respondents.

Loeb & Loeb, Mitchell, Silberberg & Knupp, Cruikshank, Jones & Gershon, Herman F. Selvin and Harry L. Gershon as Amici Curiae on behalf of Respondents.

SCHAUER, J.

Plaintiff appeals from a summary judgment rendered against him in this action to recover the reasonable value of a literary composition, or of an idea for a photoplay, a synopsis of which composition, embodying the idea, he asserts he submitted to defendants for sale, and which synopsis and idea, plaintiff alleges, were accepted and used by defendants in producing a photoplay.

The case as presented to us is perplexed by manifold problems, some of which appear only upon a composite view of the pleadings, the evidence, and the briefs on appeal. Among the questions are these: Is the plaintiff seeking to recover for (a) the conveyance^[1] of an abstract idea or (b) the sale *724 of a literary property? Or (c) is he clutching at both theories? (d) Does plaintiff's evidence tend to show an express or implied contract or (e) facts from which the law might impose a so-called quasi-contractual obligation, as to either the idea or the synopsis? The ultimate question is (f), Does the record permit the conclusion that there is no triable issue of material fact pertinent to any tenable theory available to plaintiff?

To answer the above listed questions with any substantial degree of confidence requires statement of the factual substance of the record, explanation of the nature of the judgment appealed from and the rules governing our consideration of it, together also with some discussion of the law of ideas, the law of literary property, and the law of contracts as it relates to transactions concerning ideas and literary property, with definitive recognition of the somewhat differing situations to which, as descriptive of the "contract" or obligation, some authorities apply the terms "express," "inferred," "implied in fact," "implied-in-law" or "quasi-contractual," and the significance of the subjective and objective tests in determining contractual existence under the several possibly pertinent theories.

After threading the maze, we have concluded, for reasons hereinafter stated, that the summary judgment in favor of defendants was erroneously granted and should be reversed.

The Pleadings. The complaint^[2] alleges (Count I) that "Plaintiff conceived, originated and completed a certain untitled literary and dramatic composition (hereinafter called `Plaintiff's Property') based upon the life of Floyd Collins. Plaintiff has, at all times ... been, and now is, the sole ... owner of Plaintiff's Property, ... Plaintiff submitted Plaintiff's Property to the Defendants ... In making said submission, Plaintiff stated ... that it was made for the purpose of sale of Plaintiff's Property to Defendants to be used... only if Defendants paid to Plaintiff the reasonable value thereof. Defendants accepted submission of Plaintiff's Property ... [Shortly after accepting submission of plaintiff's property defendants] commenced the preparation of and ... actually photographed a motion picture photoplay entitled `ACE IN THE HOLE,'[^[3]] [and have exhibited the same] ... At all times [concerned] ... the Defendants knew ... *725 that the Plaintiff expected them to pay him the reasonable value of Plaintiff's Property if used by them. With such knowledge ... the Defendants did copy and use Plaintiff's Property in and in connection with said motion picture photoplay." That the reasonable value of plaintiff's property at the time of use was $150,000, "no part ... of which has been paid." We do not consider Counts II and III, as plaintiff concedes that as to them the judgment should be affirmed.

The material allegations of the complaint were denied by defendants in their answer. Thereafter defendants filed notice of motion for summary judgment. The motion was heard upon affidavits filed by defendants and upon plaintiff's deposition, which is treated as an affidavit in opposition to the motion. The judgment entered upon the granting of such motion is the subject of this appeal.

Inasmuch as the contentions of the parties are largely related, directly or indirectly, to the significance and sufficiency of the evidence, and as all evidential contentions must be resolved in the light of the rules governing summary judgment proceedings it is desirable, before undertaking discussion of the principal problems, to indicate the pertinent rules concerning summary judgments.

The Law of Summary Judgments. Motions for summary judgment are provided for in section 437c of the Code of Civil Procedure. [1] The principles to be observed in proceeding under that section are stated as follows in Eagle Oil & Ref. Co. v. Prentice (1942), 19 Cal.2d 553, 555-556 [122 P.2d 264]: The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion "has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] ... [2] [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts. [Citation.]" (See also Gardner v. Jonathan Club (1950), 35 Cal.2d 343, 347 [217 P.2d 961]; Hardy v. Hardy (1943), 23 Cal.2d 244, 245 [143 P.2d 701]; Walsh v. Walsh (1941), 18 Cal.2d 439, 441 [116 P.2d 62].) [3] A summary judgment is proper only if the affidavits in support of the moving party "would be sufficient to sustain judgment in his favor, and ... [his *726 opponent] does not `by affidavit or affidavits ... show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' [Citations.]" (Coyne v. Krempels (1950), 36 Cal.2d 257, 261 [223 P.2d 244].) In other words, the affidavits are to be construed with all intendments in favor of the party opposing the motion — here, plaintiff.

The Facts upon Which the Claim of Contract is Based. Construed agreeably to the rules above stated, it appears from the present record that defendant Wilder at the times here involved was employed by defendant Paramount Pictures Corporation (sometimes hereinafter referred to as Paramount) either as a writer, producer or director, or a combination of the three. In November, 1949, plaintiff telephoned Wilder's office. Wilder's secretary, who was also employed by Paramount, answered, and plaintiff stated that he wished to see Wilder. At the secretary's insistence that plaintiff explain his purpose, plaintiff "told her about this fantastic unusual story.... I described to her the story in a few words.... I told her that it was the life story of Floyd Collins who was trapped and made sensational news for two weeks ... and I told her the plot.... I described to her the entrapment and the death, in ten minutes, probably. She seemed very much interested and she liked it.... The main emphasis was the central idea, which was the entrapment, this boy who was trapped in a cave eighty-some feet deep. I also told her the picture had never been made with a cave background before." Plaintiff sought to send Wilder a copy of the story but when the secretary learned of its length of some 65 pages she stated that Wilder would not read it, that he wanted stories in synopsis form, that the story would first be sent to the script department, and "in case they think it is fantastic and wonderful, they will abbreviate it and condense it in about three or four pages, and the producers and directors get to see it." Plaintiff protested that he preferred to do the abbreviating of the story himself, and the secretary suggested that he do so. Two days later plaintiff, after preparing a three or four page outline of the story, telephoned Wilder's office a second time and told the secretary the synopsis was ready. The secretary requested plaintiff to read the synopsis to her over the telephone so that she could take it down in shorthand, and plaintiff did so. During the conversation the secretary told plaintiff that the story seemed interesting and that she liked it. "She said *727 that she would talk it over with Billy Wilder and she would let me know." Plaintiff on his part told the secretary that defendants could use the story only if they paid him "the reasonable value of it ... I made it clear to her that I wrote the story and that I wanted to sell it.... I naturally mentioned again that this story was my story which has taken me so much effort and research and time, and therefore if anybody used it they will have to pay for it ... She said that if Billy Wilder of Paramount uses the story, `naturally we will pay you for it.'" Plaintiff did not remember whether in his first telephone conversation with the secretary anything was said concerning his purpose of selling the story to defendants.^[4] He did not at any time speak with defendant Wilder. It seems clear, however, that one of the authorized functions of the secretary was to receive and deliver messages to Wilder and hence, as is developed infra, that on this record her knowledge would be his knowledge. Plaintiff's only subsequent contact with the secretary was a telephone call to her in July, 1950, to protest the alleged use of his composition and idea in a photoplay produced and exhibited by defendants. The photoplay, as hereinafter shown in some detail, closely parallels both plaintiff's synopsis and the historical material concerning the life and death of Floyd Collins. It also includes a fictional incident which appears in plaintiff's synopsis and which he claims is his creation, presumably in the sense of being both original and novel in its combination with the facts from the public commons^[5] or public domain.

*728 The Contentions of the Parties and Amici Curiae. In his opening brief plaintiff states "It is conceded for purposes of argument [italics added] that the synopsis submitted by plaintiff to defendants was not sufficiently unique or original to be the basis for recovery under the law of plagiarism or infringement. It is conceded that the plaintiff first obtained the central idea or theme of his story, which involves the entrapment of a man in an underground cave and the national interest promoted by the attempt to rescue him, from the Floyd Collins incident which occurred in the 1920's.

"It is appellant's [plaintiff's] contention, however, that in spite of this, the lower court committed reversible error in granting a summary judgment in this case for the reason that the summary judgment had the effect of denying the plaintiff the right to prove that his idea or synopsis was the subject of a contract wherein the defendants promised to pay him for it if they used it. It is clear that `ideas,' as such, may still be the subject of a contract in California and may be protected, as such, even though not protectible under the laws of plagiarism."

Plaintiff also asserts that he "is not suing defendants for plagiarizing his idea but is suing defendants because they agreed to pay him the reasonable value of the use of his idea and story synopsis if they used his idea" and that "defendants so used plaintiff's idea and synopsis but refused to pay him as they agreed." But the complaint, as already shown, alleges that "Plaintiff conceived, originated and completed [and offered for sale to and defendants accepted submission of and thereafter used] a certain untitled literary and dramatic composition (hereinafter called `Plaintiff's Property') based upon the life of Floyd Collins."

If plaintiff is seeking to recover for a mere abstract, unprotectible idea, he must meet certain rules; if he seeks recovery for a literary composition in which he conceivably had a property right, the rules are quite different, as will subsequently be shown.

It may be that plaintiff's concessions and arguments, in the light of the pleadings and evidence, are intended to suggest that there is some nebulous middle area between an abstract idea and a literary composition, wherein the idea has been cast in "concrete" form but not "concrete" enough to constitute a literary property. (See generally, Melville B. Nimmer of the Los Angeles Bar, writing in 27 So.Cal.L.Rev. 140-144, and cases cited.) However, for the purposes of this *729 case at least, we find it unnecessary and undesirable to recognize any such hybrid, although we are aware that the Supreme Court of the United States has spoken of a "quasi property" right in news gathered and disseminated by a news service agency. (See International News Service v. Associated Press (1918), 248 U.S. 215, 242 [39 S.Ct. 68, 73, 63 L.Ed. 211, 221, 222, 2 A.L.R. 293].) The plaintiff here, we conclude, must stand or fall, and this case will be resolved, on rules applicable to ideas on the one hand or literary property on the other.

[4] This court, of course, is not bound to accept concessions of parties as establishing the law applicable to a case. (Bradley v. Clark (1901), 133 Cal. 196, 209-210 [65 P. 395]; Berniker v. Berniker (1947), 30 Cal.2d 439, 449 [182 P.2d 557].) It is also to be noted that plaintiff's concession is qualified by the words "for purposes of argument." Hence, although plaintiff makes it clear that he is not suing for "plagiarism or infringement," we feel constrained to the view that in the light of the entire record we cannot disregard a possible property right interest in the literary composition as a subject of contract, express or implied, which could afford a basis for recovery.

[5] Defendants concede, as they must, that "the act of disclosing an unprotectible idea, if that act is in fact the bargained-for exchange for a promise, may be consideration to support the promise." They then add, "But once the idea is disclosed without the protection of a contract, the law says that anyone is free to use it. Therefore, subsequent use of the idea cannot constitute consideration so as to support a promise to pay for such use." And as to the effect of the evidence defendants argue that plaintiff "disclosed his material before ... [defendants] did or could do anything to indicate their willingness or unwillingness to pay for the disclosure. The act of using the idea, from which appellant attempts to imply a promise to pay, came long after the disclosure ... Accordingly, even if a promise to pay could be found ... it came after the disclosure had been made and is therefore unenforceable." The conclusion of law asserted in the last sentence, insofar as it might be applicable to an express (whether proved by direct or by circumstantial evidence) promise to pay for the service (the conveyance of the idea) previously rendered from which a profit has been derived, for reasons which hereinafter appear (infra, pp. 803-804), is not tenable.

*730 Relative to the subject of inferred or implied contractual liability, amici curiae Association of Motion Picture Producers, Inc., National Broadcasting Company, Inc., and Four Star Films, Inc., are concerned with the state of the law. They fear that what they conceive to be quasi contractual situations, wherein the law equitably but fictionally presumes of one the making of a promise which he not only did not make but never intended to make, will be confused with circumstances which evidence actual meeting-of-the-minds but unspoken contracts; i.e., what they appear to consider to be properly termed implied-in-fact contracts. [6] They caution us that in a situation such as this, "One party cannot, by unilateral words or deeds, thrust upon another a contractual relationship unless the latter has, by his own words or deeds, consented thereto" and that "In the absence of manifest assent to the same thing upon the same terms by both parties, there is no contract." With the first of these cautionary propositions we unqualifiedly agree. Our agreement with the second, as will hereinafter appear, must depend on what it meant by "manifest assent." [7] We do not agree with the further proposition, asserted or implied by defendants and their related amici, that an idea which before conveyance has sufficient value to constitute consideration for a promise to pay its reasonable value necessarily and ipso facto upon disclosure becomes devoid of value so that as a matter of law it cannot support a promise then — and only then — made to pay its reasonable value. A promise, made in advance of disclosure, to pay for the act of conveyance or disclosure of an idea which may or may not have value is one thing. A promise, made after conveyance of the idea to the promisor, to pay reasonable value for an idea which does have value to the promisor and which has been conveyed to, and has been used by, him is another contract, the possible enforceability of which is discussed infra at pages 803-804.

From what has been indicated above it appears necessary for us in the proper disposition of this case, having in mind the problems which apparently will confront the trial court at a trial on the merits and the duty imposed on us by section 53 of the Code of Civil Procedure, to consider not only (1) the rules for recovery pertaining to the conveyance of ideas, as such, but also (2) the question whether the synopsis of plaintiff's untitled composition could on any view of the evidence be deemed entitled to the status of a literary property, and (3) the rules defining rights of recovery, so far *731 as pertinent on this record, if plaintiff has a literary property in his composition.

The Law Pertaining to Ideas. [8] Generally speaking, ideas are as free as the air and as speech and the senses, and as potent or weak, interesting or drab, as the experiences, philosophies, vocabularies, and other variables of speaker and listener may combine to produce, to portray, or to comprehend. But there can be circumstances when neither air nor ideas may be acquired without cost. The diver who goes deep in the sea, even as the pilot who ascends high in the troposphere, knows full well that for life itself he, or someone on his behalf, must arrange for air (or its respiration-essential element, oxygen) to be specially provided at the time and place of need. The theatrical producer likewise may be dependent for his business life on the procurement of ideas from other persons as well as the dressing up and portrayal of his self-conceptions; he may not find his own sufficient for survival. [9] As counsel for the Writers Guild aptly say, ideas "are not freely usable by the entertainment media until the latter are made aware of them." The producer may think up the idea himself, dress it and portray it; or he may purchase either the conveyance of the idea alone or a manuscript embodying the idea in the author's concept of a literary vehicle giving it form, adaptation and expression. It cannot be doubted that some ideas are of value to a producer.

[10] An idea is usually not regarded as property, because all sentient beings may conceive and evolve ideas throughout the gamut of their powers of cerebration and because our concept of property implies something which may be owned and possessed to the exclusion of all other persons. [11] We quote as an accurate statement of the law in this respect the following language of Mr. Justice Brandeis, dissenting in International News Service v. Associated Press (1918), supra, 248 U.S. 215, 250 [39 S.Ct. 68, 76, 63 L.Ed. 211, 225]: "An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. [12] But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary *732 communication to others, free as the air to common use."^[6] [13] Of similar import, but stated negatively: "The doctrine that an author has a property right in his ideas and is entitled to demand for them the same protection which the law accords to the proprietor of personal property generally finds no recognition either in the common law or in the statutes of any civilized country." (34 Am.Jur. 402-403, § 5; 18 C.J.S. 143, § 10e; cf. Golding v. R.K.O. Pictures, Inc. (1950), 35 Cal.2d 690, 693-697, 702, 711-712 [221 P.2d 95]; Burtis v. Universal Pictures Co., Inc. (1953), 40 Cal.2d 823, 831 [256 P.2d 933]; Kurlan v. Columbia Broadcasting System (1953), 40 Cal.2d 799 [256 P.2d 962].) [14] Whether the theory upon which this court sustained recovery in the Golding case may properly be classed as a property rights theory is not clear (see pp. 694-695 of 35 Cal.2d and pp. 831, 836-837 of 40 Cal.2d) but it is clear that California does not now accord individual property type protection to abstract ideas. (Weitzenkorn v. Lesser^[7] (1953), 40 Cal.2d 778, 788-789 [256 P.2d 947].) This accords with the general weight of authority. (See generally, Nimmer, "The Law of Ideas," (1954) 27 So. Cal.L.Rev. 120 et seq. and cases cited.) [15] "There may be literary property in a particular combination of ideas [and this must presuppose an expression thereof] or in the form in which ideas are embodied. There can be none in the ideas." (Fendler v. Morosco (1930), 253 N.Y. 281, 287 [171 N.E. 56, 58].) [16] Neither common law nor statutory copyright extends protection to an idea as such. "[O]nly *733 in the `expression' of a copyrighted work does any monopoly inhere; the `theme,' the `plot,' the `ideas' may always be freely borrowed." (Dellar v. Samuel Goldwyn, Inc. (1945, 2d C.C.A.), 150 F.2d 612.)

The principles above stated do not, however, lead to the conclusion that ideas cannot be a subject of contract. [17] As Mr. Justice Traynor stated in his dissenting opinion in Stanley v. Columbia Broadcasting System (1950), supra, 35 Cal.2d 653, 674: "The policy that precludes protection of an abstract idea by copyright does not prevent its protection by contract. Even though an idea is not property subject to exclusive ownership, its disclosure may be of substantial benefit to the person to whom it is disclosed. That disclosure may therefore be consideration for a promise to pay ... Even though the idea disclosed may be `widely known and generally understood' [citation], it may be protected by an express contract providing that it will be paid for regardless of its lack of novelty." (Cf. Brunner v. Stix, Baer & Fuller Co. (1944), 352 Mo. 1225 [181 S.W.2d 643, 646]; Schonwald v. F. Burkart Mfg. Co. (1947), 356 Mo. 435 [202 S.W.2d 7].) Amici supporting plaintiff add, "If a studio wishes to have an idea disclosed to it and finds that idea of sufficient value to make use of it, it is difficult to see how any hardship is involved in requiring payment of the reasonable value of the material submitted." The principles enunciated in the above quotation from Justice Traynor's dissent are accepted as the law of California (Weitzenkorn v. Lesser (1953), supra, 40 Cal.2d 778, 791-792) and we have no quarrel with amici's postulation. This case, however, remains to be resolved.

The lawyer or doctor who applies specialized knowledge to a state of facts and gives advice for a fee is selling and conveying an idea. In doing that he is rendering a service. The lawyer and doctor have no property rights in their ideas, as such, but they do not ordinarily convey them without solicitation by client or patient. Usually the parties will expressly contract for the performance of and payment for such services, but, in the absence of an express contract, when the service is requested and rendered the law does not hesitate to infer or imply a promise to compensate for it. (See Buck v. City of Eureka (1899), 124 Cal. 61, 66 [56 P. 612]; Zumwalt v. Schwarz (1931), 112 Cal. App. 734, 736 [297 P. 608]; People's Nat. Bank v. Geisthardt (1898), 55 Neb. 232, 237-238 [75 N.W. 582]; 6 Cal.Jur.2d 378, § 181; *734 5 Am.Jur. 351, § 153; 41 Am.Jur. 256 § 142; 7 C.J.S. 1078, § 190(b); 70 C.J.S. 1023, § 68; see also Long v. Rumsey (1938), 12 Cal.2d 334, 341-342 [84 P.2d 146].) In other words the recovery may be based on contract either express or implied. [18] The person who can and does convey a valuable idea to a producer who commercially solicits the service or who voluntarily accepts it knowing that it is tendered for a price should likewise be entitled to recover. In so holding we do not fail to recognize that free-lance writers are not necessarily members of a learned profession and as such bound to the exalted standards to which doctors and lawyers are dedicated. So too we are not oblivious of the hazards with which producers of the class represented here by defendants and their related amici are confronted through the unsolicited submission of numerous scripts on public domain materials in which public materials the producers through their own initiative may well find nuclei for legitimately developing the "stupendous and colossal." [19] The law, however, is dedicated to the proposition that for every wrong there is a remedy (Civ. Code, § 3523) and for the sake of protecting one party it must not close the forum to the other. It will hear both and seek to judge the cause by standards fair to both. To that end the law of implied contracts assumes particular importance in literary idea and property controversies.

The Law Pertaining to Contracts, Express, Implied-in-Fact and Implied by Law, and Quasi Contractual Obligations, as Related to Ideas and Literary Property. The parties and amici, from their several viewpoints, discuss the law of contracts and caution us not to confuse the rules insofar as such rules may differentiate respectively among contracts which are express or implied-in-fact or implied-in-law, meaning by the latter expression to denote a quasi-contractual oblilation imposed by law. We agree that whether a contract be properly identified as express or as implied-in-fact or inferred from circumstances; or whether the bargain meets the subjective test of a meeting of minds or is held to reside in the objective evidence of words and acts with or without a meeting of minds; or whether the obligation be recognized as implied by law from acts having consensual aspects (and therefore often termed implied-in-fact); or whether the obligation be imposed by law because of acts and intents which, although tortious rather than consensual, should in justice give rise to an obligation resembling that created by contract *735 and, hence, should be termed quasi-contractual, is important here to the extent that we recognize the situations and discriminate appropriately in the governing rules.

[20] An eminent writer says that "The elements requisite for an informal contract ... are identical whether they are expressly stated or implied in fact," citing e.g., Lombard v. Rahilly (1914), 127 Minn. 449 [149 N.W. 950], holding "A `contract implied in fact' requires a meeting of the minds, an agreement, just as much as an `express contract'; the difference between the two being largely in the character of the evidence by which they are established"; see also Silva v. Providence Hospital of Oakland (1939), 14 Cal.2d 762, 773 [97 P.2d 798]. (Williston on Contracts, rev. ed., vol. 1, p. 8.) The same author describes quasi contracts by declaring that "as quasi contractual obligations are imposed by the law for the purpose of bringing about justice without reference to the intention of the parties, the only apparent restriction upon the power of the law to create such obligations is that they must be of such a sort as would have been appropriately enforced under common-law procedure by a contractual action. Indeed even this limitation is too narrow, for a bill in equity or a libel in admiralty might be the appropriate means of enforcing some quasi contractual obligations. As the law may impose any obligations that justice requires, the only limit in the last analysis to the category of quasi contracts is that the obligation in question more closely resembles those created by contract than those created by tort. On the other hand, a true contract cannot exist, however desirable it might be to have one, unless there is a manifestation of assent to the making of a promise. Furthermore, the measure of damages appropriate to contractual obligations differs from that applicable to quasi contracts ... It is also true that quasi contractual obligations are not so universally based on unjust enrichment or benefit as is sometimes supposed.^[8] There are many cases where the law enforces in a contractual action a duty to restore the plaintiff to a former status — not merely to surrender the benefit which the defendant has received."

If it were not for precedent we should hesitate to speak of an implied-in-fact contract. [21] In truth, contracts are *736 either made in fact or the obligation is implied in law. [22] If made in fact, contracts may be established by direct evidence or they may be inferred from circumstantial evidence. The only difference is in the method of proof. In either case they would appear to be express contracts. Otherwise, it would seem that they, or the presumed contractual obligation, must be implied at law. [23] A so-called "implied-in-fact" contract, however, as the term is used by some writers, may be found although there has been no meeting of the minds. [24] Even an express contract may be found where there has been no meeting of minds. The classic example of this situation is set up by the parol evidence rule. The law accepts the objective evidence of the written contract as constituting the contract and, subject, of course, to certain exceptions, precludes oral evidence to show that the minds of the parties did not meet in the writing. Professor Williston recognizes in effect, if not specifically, that the law implies (or construes) contractual obligations in many cases where there is no true contract in the historically conventional sense and that such implied obligations are of the nature of, and governed by the rules applicable to, contracts termed implied-in-fact by many writers. In a paper published in 14 Illinois Law Review 85, 90, Mr. Williston says: "The parties may be bound by the terms of an offer even though the offeree expressly indicated dissent, provided his action could only lawfully mean assent. A buyer who goes into a shop and asks and is given [told] the price of an article, cannot take it and say `I decline to pay the price you ask, but will take it at its fair value.' He will be liable, if the seller elects to hold him so liable, not simply as a converter for the fair value of the property, but as a buyer for the stated price." (See Lucy v. Mouflet (1860), 5 H. & N. 229, 232; Wilcox, Ives & Co. v. Rogers (1913), 13 Ga. App. 410 [79 S.E. 219]; Rest., Contracts, § 5, p. 7; § 72(2), p. 77.) Concerning the same subject Professor Costigan, in a paper published in 33 Harvard Law Review 376, at 398, states his view: "Professor Williston is absolutely right in his contention that the no-meeting-of-the-minds express contracts — the objective but not subjective test contracts — are properly to be denominated contracts instead of quasi-contracts, and the reason for that concession was that on their breach the normal contract measure of damages is applied. But that same reason has led us to the further conclusion that there are genuine implied-in-fact *737 contracts of both the meeting-of-the-minds and the no-meeting-of-the-minds varieties."

Whether the resulting "contract" in the cases discussed by the learned professors is classified as express (as may be fictionized by the law's objective test) or as implied-in-fact (as also may be fictionized by the law) or whether in the same or slightly differing circumstances an obligation shall be "implied" and denominated "quasi contractual" because it is strong-armed by the law from nonconsensual acts and intents, is probably important in California — and for the purposes of resolving the problems now before us — principally as an aid to understanding the significance of rulings and discussions in authorities from other jurisdictions. Here, our terminology and the situations for application of the pertinent rules are simplified by codification.

Our Civil Code declares that (§ 1619) "A contract is either express or implied"; (§ 1620) "An express contract is one, the terms of which are stated in words" and (§ 1621) "An implied contract is one, the existence and terms of which are manifested by conduct." The same code further provides that (§ 1584) "[T]he acceptance of the consideration offered with a proposal, is an acceptance of the proposal"; (§ 1589) "A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the persons accepting"; (§ 1605) "Any benefit conferred ... upon the promisor, by any other person, to which the promisor is not lawfully entitled ... is a good consideration for a promise"; and (§ 1606) "[A] moral obligation originating in some benefit conferred upon the promisor ... is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise." (See also Silva v. Providence Hospital of Oakland (1939), supra, 14 Cal.2d 762, 773, and cases there cited; Horacek v. Smith (1948), 33 Cal.2d 186, 194 [11] [199 P.2d 929]; Yadkoe v. Fields (1944), 66 Cal. App.2d 150, 158-159 [151 P.2d 906]; Rest., Contracts, §§ 5, 72(2); 12 Cal.Jur.2d 186-189.)

[25] From what has been shown respecting the law of ideas and of contracts we conclude that conveyance of an idea can constitute valuable consideration and can be bargained for before it is disclosed to the proposed purchaser, but once it is conveyed, i.e., disclosed to him and he has *738 grasped it, it is henceforth his own and he may work with it and use it as he sees fit. [26] In the field of entertainment the producer may properly and validly agree that he will pay for the service of conveying to him ideas which are valuable and which he can put to profitable use. [27] Furthermore, where an idea has been conveyed with the expectation by the purveyor that compensation will be paid if the idea is used, there is no reason why the producer who has been the beneficiary of the conveyance of such an idea, and who finds it valuable and is profiting by it, may not then for the first time, although he is not at that time under any legal obligation so to do, promise to pay a reasonable compensation for that idea — that is, for the past service of furnishing it to him — and thus create a valid obligation. [28] As said in 12 American Jurisprudence 603, section 110, "there is considerable authority which supports the view that the moral obligation arising from a benefit of a material or pecuniary kind conferred upon the promisor by past services, rendered in the expectation that they were to be paid for — or, at least, if rendered upon the assumption by the person rendering them, though mistaken, that they would create a real liability — and, otherwise, in circumstances creating a moral obligation on the part of the promisor to pay for the same, will support an executory promise to do so, although there was, previous to such promise, no legal liability or promise, perfect or imperfect." (See also Civ. Code, §§ 1605, 1606, quoted supra, p. 802; Edson v. Poppe (1910), 24 S.D. 466 [124 N.W. 441, 26 L.R.A.N.S. 534]; Bailey v. City of Philadelphia (1895), 167 Pa. 569 [31 A. 925, 46 Am.St.Rep. 691]; Gray v. Hamil (1889), 82 Ga. 375 [10 S.E. 205, 6 L.R.A. 72]; Credit Bureau of San Diego v. Johnson (1943), 61 Cal. App.2d Supp. 834, 839 [142 P.2d 963]; 17 A.L.R. 1366-1371, s. 79 A.L.R. 1354; 53 L.R.A. 371-376; 26 L.R.A.N.S. 526.) [29] But, assuming legality of consideration, the idea