Page:Landsberg v. Scrabble Crossword Game Players.pdf/6

 The district court made no findings on this point.

It is true that Landsberg’s first disclosure of his manuscript to S & R, when he requested permission to use the Scrabble mark, apparently preceded any conduct on S & R’s part indicating the existence of an implied-in-fact contract. However, we cannot hold as a matter of law that as a result no implied-in-fact contract was formed. Landsberg’s initial disclosure of his manuscript to S & R may have been made in confidence, and if so, S & R’s use of the disclosed ideas would have been wrongful. Faris v. Enberg, 97 Cal.App.3d 309, 158 Cal.Rptr. 704 (1979); Davies v. Krasna, 245 Cal.App.2d 535, 54 Cal.Rptr. 37 (1966); Donahue v. Ziv Television Programs, Inc., 245 Cal.App.2d 593, 593, 54 Cal.Rptr. 130, 130 (1966) (dictum); Thompson v. California Brewing Co., 150 Cal.App.2d 469, 310 P.2d 436 (1957). See Davies v. Krasna, 14 Cal.3d 502, 512, 535 P.2d 1161, 1167, 121 Cal.Rptr. 705, 711 (1975). If Landsberg’s original disclosure to S & R was in confidence, Landsberg cannot be said to have “blurt[ed] out his idea without having first made his bargain,” Desny, 46 Cal.2d at 738, 299 P.2d at 270, and he should therefore not be held to have lost the opportunity to be the beneficiary of an implied-in-fact contract with S & R.

S & R’s request for a second copy of Landsberg’s manuscript may constitute conduct creating an implied-in-fact contract binding S & R to pay for Landsberg’s ideas when used. See Minniear v. Tors, 266 Cal.App.2d 495, 504, 72 Cal.Rptr. 287, 294 (1968). We remand to the district court for further proceedings on Landsberg’s breach of contract claim.

IV. OTHER ISSUES

A. Exclusion of hearsay.

S & R claims that at numerous points in the trial the judge erroneously sustained objections to hearsay. An analysis of each of the instances listed by S & R shows that the exclusions of hearsay were justified. In most of the cases, the testimony was directed at proving the truth of irrelevant allegations about Landsberg by quoting statements made by the witness to other persons out of court. In each case the witness could have been asked what Landsberg had done, not what the witness said he had said Landsberg had done. The objections to hearsay were properly sustained. Fed.R.Evid. 801(c), 802.

B. Denial of motion to amend.

S & R claims that the court erred in denying its motion to amend its answer one year after the final disposition in the case was filed. The court’s denial of the dilatory and futile motion was proper. See PSG Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659 (9th Cir.1969), ''cert. denied'', 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d 99 (1970) (affirming denial of amendment 19 months after complaint had been filed).; [sic] Vickery v. Fisher Governor Company, 417 F.2d 466 (9th Cir.1969) (affirming denial of amendment offered after entry of judgment).

C. Findings of Fact.

S & R asserts that the district court erred in using fact findings submitted by the winning side. It is true that the adoption of findings submitted by one of the parties necessitates close review of the facts by an appellate court, but it does not constitute reversible error unless the findings are clearly unsupported by substantial evidence. Here the findings, with the exception of those relating to substantial similarity, were supported by the evidence and both sides were permitted to file suggested findings and objections to findings. The court made its final choice of findings without undue prompting by either side. This was not reversible error. Photo Electronics Corp. v. England, 581 F.2d 772, 776–77 (9th Cir.1978).

D. Statute of Limitations.

S & R claims that Landsberg’s copyright infringement action was barred by the two-year California statute of limitations because S & R published an article about the