OpenJurist

199 F2d 168 Bell v. Morgan

199 F.2d 168

91 U.S.App.D.C. 65

BELL,

v.

MORGAN et al.

No. 11297.

United States Court of Appeals District of Columbia Circuit.

Argued May 20, 1952.

Decided May 29, 1952.

As Amended Sept. 12, 1952.

[91 U.S.App.D.C. 66] Joseph Rotwein, Washington, D.C., for appellant.

N. Meyer Baker, Washington, D.C., with whom Lucien H.. Mercier, Washington, D.C., was on the brief, for appellees Morgan and Carter. William B. Wolf, Washington, D.C., entered an appearance for appellee Brylawski.

Before EDGERTON, PRETTYMAN and PROCTOR, Circuit Judges.

PER CURIAM.

1

Appellant sued on alleged 'agreements in writing' for the sale of land in the District of Columbia. Since the writing on which appellant relied was plainly not an agreement, the District Court was right in awarding summary judgment to appellees.

2

Appellant moved after judgment for leave to file an amended complaint which, his motion says, 'conforms the pleadings with the evidence * * * .' The proposed complaint would allege, instead of an agreement in writing, an oral agreement evidenced by a memorandum in writing. The court declined to let appellant shift his ground after judgment had gone against him. This was not error, although appellant had informed the court, before judgment, that he wished to amend. The matter was within the court's discretion under Fed.Rules Civ.Proc. Rule 15, 28 U.S.C.A. Moreover the "memorandum" was only appellant's offer. It was nowhere signed by appellees or by any one on their behalf, as required by D.C.Code 1940, § 12-302. It did not even name appellees. The fact that appellees' alleged agent initiated a handwritten change in appellant's printed and typed offer, before it was forwarded to appellees, is immaterial. Accordingly appellant could not have recovered upon the proposed amended complaint if the court had allowed it to be filed.

3

Affirmed.