specially concurring;
I consider the weight of the direct and circumstantial evidence to be such that a trier of fact could reach no other conclusion than that Zellmer, acting on behalf of Swine Breeders, offered to pay plaintiff for the November work if plaintiff performed that work and that plaintiff did perform the required work in reliance on that offer. The opinion states that although the ruling of the trial court was made for the wrong reason, we may sustain it if any basis to do so appears in the record. This statement does not make clear whether affirmance would be proper if the evidence of the unilateral contract was merely strong enough to have permitted the trier of fact to have found the existence of the unilateral contract if it had addressed that issue. I consider a determination by us that the unilateral contract was proved as a matter of law to be a requirement of our affirmance.
This case differs from those cases where the record does not indicate the reasons for the trial court’s decision. Here, the record implies that the trier of fact either did not consider the question of the unilateral contract or else decided that such a contract was not proved. If we nevertheless affirm merely upon the basis that had the trial court considered that question, it could properly have found that the contract existed, we are depriving the defendant of a factual determination to be made by the court that heard the evidence and viewed the witnesses. The ruling of the trial court may be right for the wrong reason, but it would beg the question to say that the trial court was right because it could have found that contract was made.
The language in the cases has not been explicit in stating the circumstances under which a reviewing court may affirm a ruling of the trial court made for the wrong reason. In Keck v. Keck (1974), 56 Ill. 2d 508, 309 N.E.2d 217, the trial court had refused to give full faith and credit to a Nevada divorce decree for the stated reason that the decree had been obtained in violation of an injunction of that court. The supreme court held that the ruling could not be sustained on that ground but that the ruling would be upheld because the evidence presented to the trial court showed that the plaintiff was not domiciled in Nevada at the time of the entry of the questioned decree. I consider that opinion to indicate that the lack of domicile had been proved as a matter of law in the trial court. In People ex rel. Scott v. United States Steel Corp. (1976), 40 Ill. App. 3d 607, 352 N.E.2d 225, no question of the sufficiency of evidence was involved. The decision appealed was affirmed on a different legal ground than that stated by the trial court. No decision of the supreme court nor of this court has been called to my attention which holds that a decision of the trial court rendered for a stated reason which was erroneous may be affirmed merely because the evidence was sufficient to support a factual determination that would require the decision made by the trial court. In Schertz v. Rundles (1977), 48 Ill. App. 3d 672, 363 N.E.2d 203, we stated that a decision of the trial court made for the wrong reason may be affirmed on appeal on other grounds only when the evidence proves those grounds as a matter of law. See also 5 Am. Jur. 2d Appeal and Error §728 (1962).
The point discussed in this special concurrence is obscure but I consider it to be important. To the extent that the opinion does not make clear that our affirmance is conditioned upon our determination that the contract was proved as a matter of law, I am in disagreement with the opinion.