(concurring in part and dissenting in part).
I concur with that portion of the majority opinion affirming the judgment of involuntary dismissal (actually an order granting a motion for non-suit) as to defendant lest, but I dissent from that portion of the opinion which reverses the judgment of involuntary dismissal granted to defendant Tadlock and remands to the trial court that portion of the cause for further proceedings.
Tadlock’s liability on the contract is based, by the majority opinion, on the principle that a party entering into a contract in his self-assumed capacity as agent, with no actual authority from the purported principal, or in excess of an existing authority, is personally liable to the other contracting party who acted in good faith and in reliance on the false representations. Nowhere in the pleadings before the trial court, i. e., plaintiff’s amended complaint, plaintiff’s notice of claim of mechanic’s and material-man’s lien, or in the respective answers of the two defendants, is this issue even remotely raised; but this deficiency is sidestepped by the majority, after recognizing it, by holding — “Nevertheless, once the issue emerged from appellant’s offered proof, submitted by express or implied consent of the parties, the district court was obligated to treat the issue of misrepresentation in all respects as if it had been raised in the pleadings,” citing I.R.C.P. 15(f), McMinn v. Holley, 86 Idaho 186, 384 P.2d 229 (1963); Morford v. Brown, 85 Idaho 480, 381 P.2d 45 (1963).
This principle is inapplicable to the cause at hand for two reasons: First, in the Mc-Minn and Morford cases the specific issues decided by the court were raised in the briefs of the parties, both in their points and authorities and in the arguments contained in the briefs. This is not so in the case before us. There is no mention whatever in the briefs of either the appellant or the respondent concerning the personal responsibility of defendant Tadlock to the appellant on the theory advanced by the court, nor is there any mention of such issue in the pleadings presented to the trial court. It has long been the ruling of this court that it will not consider issues presented for the first time to this court unless it be the issue of jurisdiction of the trial court. Cantlin v. Carter, 88 Idaho 179, 397 P.2d 761; Miller v. Miller, 88 Idaho 57, 396 P.2d 476; Robinson v. Spicer, 86 Idaho 138, 383 P.2d 844; Frost v. Mead, 86 Idaho 155, 383 P.2d 834; Cox v. Cox, 84 Idaho 513, 373 P.2d 929; Smith v. Shinn, 82 Idaho 141, 350 P.2d 348; Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686; Webster v. Potlatch Forests, 68 Idaho 1, 187 P.2d 527; Miller v. Donovan, 11 Idaho 545, 83 P. 608.
Secondly, the provision of I.R.C.P. 15(b) relied upon in the majority opinion is as *578follows: "When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The record in this case does not bring it within this provision; but instead clearly shows that the plaintiff did not rely upon the theory, advanced for the first time by the supreme court itself, in concluding that Tadlock was personally liable to appellant. The record shows, on page 22 of the transcript, when the appellant was being cross-examined, the following testimony:
“Q. You have never even up to today asked Mr. Tadlock to pay for the pump, have you?
“A. No, Sir.
“Q. And did Mr. Tadlock in this conversation say anything to you to give the impression he was going to pay for the pump ?
“A. No, Sir.
"Q. Then your discussion was discussing a sale to Mr. lest, the owner of the property, is that correct?
“A. Through Mr. Tadlock, yes.
“Q. In fact, that is the way you word your complaint that Mr. Tadlock was an agent of defendant lest, is that correct?
“A. Yes”.
In my opinion the quoted provisions of I.R.C.P. 15(b) should be applied only in cases where the record clearly shows the parties did in fact fully try the issues not pleaded in the trial court, for all issues should first be presented to the trial court prior to any recognition thereof on appeal to this court.
There is sound reasoning behind the consistent holding of this court refusing to decide issues which have not first been submitted to the trial court, for the opposing counsel has not had an opportunity to present his case before a trial judge. Even more compelling is the reasoning behind the rule that this court should not of its own motion take cognizance of, and decide cases upon, issues not raised by either counsel for the parties in their briefs, written arguments or oral arguments before the court. Neither party has had an opportunity to be heard on such an issue in the trial court nor to brief or argue it properly before this court.
The judgment of the trial court should be affirmed in all respects.
McQUADE, J., concurs with this dissent.