I concur only in the result reached in the majority opinion. I dissent from, and heartily deplore, the lengthy discussion of numerous principles of law wholly inapplicable and unnecessary to a determination of this matter. No good purpose is served by such a discussion other than to confuse the reader and the future state of the law so far as this type of ease is concerned and other cases in general involving similar problems. I had always thought it the policy *753of this court, and other appellate courts, to determine only the issues actually involved and to avoid dissertations on points of law having no bearing on those issues. Such useless, although learned, discussions must later be distinguished, dissented from, and finally overruled by subsequent decisions.
In reviewing a summary judgment “The 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 if any facts are presented which give rise to a triable issue, the summary judgment must be denied (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553 [122 P.2d 264]). It is not the function of a reviewing court to pass upon or determine the issue itself. Despite this well-settled rule, the majority opinion sets forth, at length, the two stories—plaintiff’s synopsis and defendant’s scenario and proceeds to dissect them with a scalpel and microscope. Further, the majority opinion directs that “At the trial the trier of fact should proceed with nicety of discrimination in applying the evidence to resolve the issues.” I had always thought that the well-settled rule was that the trier of fact, whether judge or jury, was the sole judge of the evidence, that it determined the weight to be accorded to such evidence, and the credibility to be accorded the witnesses! But now we find the trier of fact being directed by this court to use the same scalpel and microscope in examining the evidence. We also find the majority directing the trier of fact as to what inferences may, and may not, be drawn from certain evidence. I had also thought, prior to this case, that the inferences to be drawn were for the trier of fact!
If the only function of the court upon a motion for a summary judgment is to determine whether triable issues of fact exist, then the issues were joined; That plaintiff had a property interest in a certain literary and dramatic composition which he submitted to defendants on the condition that if defendants used said literary and dramatic composition, defendants would pay plaintiff for the use thereof; that defendants copied and used plaintiff’s literary and dramatic composition and have not compensated him therefor. Whether or not the literary and dramatic composition had merit, whether or not defendants’ production was so similar as to warrant the inference that defendants had copied plaintiff’s work, and whether or not the evidence showed that plaintiff had submitted the same to defendants with the expectation of compensation if defendants used the literary and dramatic *754work, were all questions of fact for the trier of fact. In other words, the defendants’ motion for summary judgment was improperly granted. And the only function of this court is to review the action of the trial court in granting that summary judgment—in other words, to determine whether or not triable issues of fact existed. But a majority of this court has seen fit not only to take unprecedented flights of fantasy but to set forth learned discussions of inapplicable law and then direct the trier of fact at the new trial as to how it should perform its function in the judicial field.
Taking into consideration the length of the majority opinion, there is no necessity of here reiterating the evidence concerning plaintiff’s submission of his literary work to defendant Wilder’s secretary. We all are aware, I believe, that ideas may be taken from the public domain and woven into a plot, or story, which may present something new, different, and of value to one in the market for such merchandise. It does not require interminable discussion of how many plots there are, nor of what some writers have considered as plots, nor of the services rendered by doctors, lawyers, dentists and the like, to bring home to the average attorney that an old theme may be given new interest by a different interpretation thereof and that this different interpretation may have value to one in the business of purchasing that type of merchandise.
When we consider the difference in economic and social backgrounds of those offering such merchandise for sale and those purchasing the same, we are met with the inescapable conclusion that it is the seller who stands in the inferior bargaining position. It should be borne in mind that producers are not easy to contact; that those with authority to purchase for radio and television are surrounded by a coterie of secretaries and assistants; that magazine editors and publishers are not readily available to the average person. It should also be borne in mind that writers have no way of advertising their wares—that, as is most graphically illustrated by the present opinion, no producer, publisher, or purchaser for radio or television, is going to buy a pig in a poke. And, when the writer, in an earnest endeavor to sell what he has written, conveys his idea or his different interpretation of an old idea, to such prospective purchaser, he has lost the result of his labor, definitely and irrevocably. And, in addition, there is no way in which he can protect himself. *755If he says to whomever he is permitted to see, or, as in this ease, talk with over the telephone, “I won’t tell you what my idea is until you promise to pay me for it,” it takes no Sherlock Holmes to figure out what the answer will be! This case is a beautiful example of the practical difficulties besetting a writer with something to sell—he is not permitted even to see the secretary in person—he must convey to her over the telephone the result of his efforts.
There is no necessity for the superfluous, even though learned, discussion of the “law pertaining to contracts, express, implied-in-fact and implied-in-Iaw, and quasi-contractual obligations, as related to ideas and literary property” found in the majority opinion. In California we have code sections distinctly defining the various types of contracts and we have not been informed why those code sections are ineffective to deal with the problem of ideas and literary property. As a matter of fact, if I understand the majority opinion, it finally comes down to earth and relies on those code sections. In the majority opinion we find this statement: “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 grasped it, it is henceforth his own and he may work with it and use it as he sees fit. 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. 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.” (Emphasis added.) It seems to me most obvious that a seller of literary work would not disclose his ideas incorporated in his work to a prospective purchaser of the same without an implied understanding on the part of both that such an idea, if used by the one to whom it was disclosed, would be paid for by the one in a position to use the literary work. The very positions *756occupied by the buyer and seller would be sufficient to raise an implication that the one offering the literary work, and the one to whom it was disclosed, had agreed, impliedly that if the literary work were used by the one to whom it was shown, or offered, it would be paid for. It should not be necessary to lay down so many cast-iron rules when really the only question involved is the use made of the proffered work without compensation being made therefor. The buyer, or one to whom the literary work was offered, is adequately protected from unfounded claims by the rules defining a protectible literary work and by the fact that the trier of fact must find that the one accused of an unauthorized use of the literary work had access thereto, that the author’s work bears a reasonable resemblance to that produced by the defendant. I disagree with the statement in the majority opinion that: ‘ The idea man who blurts out his idea without having first made his bargain has no one but himself to blame for the loss of his bargaining power.” It seems to me that in the ordinary situation, when the so-called “idea man” has an opportunity to see, or talk with, the prospective purchaser, or someone in his employ, it is at that time, without anything being said, known to both parties that the one is there to sell, and the other to buy. This is surely true of a department store when merchandise is displayed on the counter—it is understood by anyone entering the store that the merchandise so displayed is for sale—it is completely unnecessary for the storekeeper, or anyone in his employ, to state to anyone entering the store that all articles there are for sale. I am at a loss to see why any different rules should apply when it is ideas for sale rather than normal run of merchandise. It is quite true that one need not pay for ideas as such which are in the public domain but when those ideas have been so treated that they have worth or value to a prospective purchaser, it is difficult to understand why it is necessary that the seller should definitely state that he is selling his merchandise to a prospective buyer. It appears to me that the positions occupied by the parties should be sufficient to raise the inference that if the literary work is used by the prospective buyer, compensation would be paid therefor regardless of how much time the buyer takes to decide whether he will use it.