(dissenting in part).
I would affirm the judgment in toto. My reason for disagreeing with the partial reversal is that I think the cases cited in footnote 4 of the opinion do not justify a departure from the rule of United States v. Waechter, 9 Cir., 195 F.2d 963.
Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 722, 85 L.Ed. 1037, expressly recognized “the desirability and existence of a general practice under which appellate courts confine themselves to the issues raised below”. But the case was considered an exceptional one because of the extraordinary circumstance that the new and controlling decision in Helvering v. Clifford, 309 U.S. 331, 60 5. Ct. 554, 84 L.Ed. 788, was announced after the Tax Court decision, but before that of the Court of Appeals.
No such special conditions here justify departure from the ordinary rule. This is not a Tax Court case. Hormel was a review of the Board of Tax Appeals, and the court found support for its out-of-the-ordinary rule in the broad language of the then statute relating to review in such cases. This case, on the contrary is, like Waechter, an appeal from a judgment of a district court. As no extraordinary circumstances are here present, I think we should recognize the impropriety of reversing6 a district judge for failure to apply a theory which he had no opportunity to consider.
. A different situation is presented where it is sought to sustain the lower court’s decisions on grounds other than those relied upon below. See Gulf, M. & O. R. Co. v. Williamson, 8 Cir., 191 F.2d 887, 893.