The appellant filed a petition in the probate court asking that a decree be entered directing that a conveyance of a two-thirds interest in the real estate in question be made to her. The probate court, after a hearing, entered such a decree, from which an appeal was perfected to the district court. It is conceded by the majority opinion that the petition to the probate court was prepared on the theory that the instrument in *Page 526 question was an executory contract for the sale by Fackrell, and purchase by appellant, of the two-thirds interest in the property in question, and that the appellant, who was petitioner, had complied with and performed her part of the agreement to be performed on her part entitling her to a deed of a two-thirds interest in the property during the lifetime of Fackrell, and, therefore, under the statute, entitled to a conveyance of a two-thirds interest by the administrator of the estate. In the trial before the district court both parties again tried the issues on the theory that the instrument was an executory contract, as apparently had been the theory at the hearing before the probate court. The sole contention of the appellant in the trial of the case in the district court being, that the instrument in question was an executory contract, which could have been enforced as against Fackrell during his lifetime. The respondent was only required to meet that issue. Considerable oral testimony was introduced before the district court. The trial court made findings and entered judgment holding, in effect, that the instrument in question was not an executory contract for the sale and purchase of real property, which could have been enforced during the lifetime of the deceased, which judgment was rendered upon the theory on which the case was tried before it. In Mr. Justice Morgan's opinion it is stated:
"The evidence does not support the theory that a valid, executory contract existed between Fackrell and appellant, binding the former to sell, and the latter to buy, an interest in the property in question. There was no meeting of the minds and no agreement, on appellant's part, to purchase or pay for the property, nor does it appear there was any intention on Fackrell's part to sell it, or that she should pay for it."
And I fully agree with Mr. Justice Morgan that the record supports said statement.
After the trial court had rendered its judgment, an appeal was perfected to this court, and the case was again presented on the sole theory as to whether the instrument in *Page 527 question was an executory contract for the sale and purchase of real property, which could have been enforced by appellant against the deceased, Fackrell, during his lifetime; appellant contending that it was such a contract, as supported by the record, and respondent contending that it was not. It was never contended by appellant, either in the trial court or in this court, that the instrument in question, supported by the proof in the lower court, showed a completed gift inter vivos. The case was neither tried in the lower court, nor briefed and presented to this court, on that theory. In fact, during the oral argument before this court, when the attorney for appellant was asked by one of the members of this court if he was contending that the transaction constituted a gift, his answer was in the negative. The effect of Mr. Justice Morgan's opinion is, that the lower court was right in its decision, on the theory on which the case was tried, but notwithstanding that fact, it was wrong. The opinion does not hold that the lower court was wrong by reason of the theory on which the case was tried in the lower court or in this court, but by reason of a new theory introduced in the opinion, that is, that appellant may recover provided the respondent is unable to put forth further evidence to overcome this new gift theory.
In the special concurring opinion of Mr. Chief Justice Budge and Mr. Justice Holden, they evade the issue that is really before us. In such opinion it is stated:
"The undisputed testimony establishes the fact that the contract, by reason of the transactions that took place between the parties, became and was an executed contract." But the type of contract contended for by appellant in the lower court, and in this court, is not an executed contract, as is forcibly pointed out in Mr. Justice Morgan's opinion. There are ample findings of the trial court, supported by evidence, that the instrument in question was not an executory contract for the sale and purchase of real property, that could be enforced during the lifetime of Fackrell. And, even though the two specific findings set forth in the special concurring opinion are not supported *Page 528 by the evidence, the findings of the court that are supported with ample evidence are sufficient to support the judgment of the lower court. Therefore, the judgment of the lower court should not be reversed by reason of such findings complained of.
Certainly the respondent, in the lower court, was not required to do more than meet the issue and theory presented by appellant. Under our method of trying cases in the district court, it was not incumbent on respondent to anticipate new and additional theories that might later be advanced by the supreme court, which would bring success to appellant's cause. If that were so, respondent, in the first instance, should have been required in the trial court to submit his evidence to meet such anticipated issue, and if respondent has not done so he should not be permitted to do it now. According to the majority opinions the trial court should have decided in favor of the appellant. In returning the case to the lower court with directions to permit the introduction of additional testimony, it can only be on the theory that respondent shall have the privilege of introducing evidence on a new theory advanced by this court, which respondent was not given the opportunity to meet at the former trial.
This is not a new question in this state. This court has consistently and repeatedly held that litigants are not permitted to switch theories when coming to this court, and if litigants are not permitted to change their theory of the case from that advanced in the trial court, I fail to find any justification for the supreme court doing it for them. InFouch v. Bates, 18 Idaho 374, 384, 110 P. 265, the court said:
"Some question is raised as to the effect of the return of the deed in January, 1900, by respondent to Bates, which deed was executed by Bates and wife to respondent. It is contended that the great weight of authority is to the effect that the return of a deed by a grantee to the grantor, even with the intention to reinvest the grantor with title, does not reconvey any title to the grantor. That may be true as a rule of law, but this case was not tried upon that *Page 529 theory, but was tried upon the theory that Bates held the legal title, and we shall decide it upon the theory on which it was tried."
Mr. Justice Rice, speaking for the court, in Brown v. Hardin,31 Idaho 112, 115, 169 P. 293, said:
"The cause was tried upon the theory that the counterclaim alleged an agreement on the part of the bank to accept the proceeds of the sale of the property by Wilson, whether such proceeds should be cash or notes or other securities, and to pay to respondent the excess of the proceeds, if any over the indebtedness due the bank by the respondent. The briefs of both the appellant and respondent agree upon this point. In the brief of appellant we find the following: 'Defendant claims that one G.H. Brown, an officer of said bank, agreed for the bank that such sale was to be with the approval of the bank, and that the bank accepted the proceeds of such sale in full settlement of the defendant's notes and would render to defendant any over-plus.' Respondent in his brief states appellant's contention as follows: 'Appellant claims that the only agreement made by the bank with respondent was that the proceeds of the sale made by Wilson Brothers were to be applied on the indebtedness of respondent to the bank on the notes in suit.'
"Both parties having tried the cause upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted."
Again in Hindman v. Oregon Short Line R. R. Co., 32 Idaho 133,136, 178 P. 837, this court said:
"While it is doubtful whether the complaint is sufficient to tender an issue under the statute requiring railroads to fence, this defect is cured by the allegations in the answer. At any rate, the case was tried upon the theory that the issue raised was under the statute above referred to and this court has recently held that 'where both parties to an action try their case upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted.' (Brown v.Hardin, 31 Idaho 112, 169 P. 293.)" *Page 530
And in Idaho Gold Dredging Corp. v. Boise Payette Lbr. Co.,52 Idaho 766, 776, 22 P.2d 147, this court said:
"Furthermore, the parties to an action are bound by the theory on which they try it. This case was not tried on the theory that the injury to appellant's property was temporary. There is neither allegations nor proof that the presence of grease and oil on the watershed and in the dredge pond was abatable, nor when, if ever, it might be expected to abate itself, nor was any instruction requested based on the theory of an abatable nuisance."
Further, in the same case the court said:
"In Bielman v. Chicago, St. Paul Kansas City Ry. Co.,50 Mo. App. 151, it was urged that the difference in value of property before and after injury by a nuisance which could be abated was not the proper measure of damages. The court said: 'However, the defendant cannot now be heard to complain of the measure of damages adopted in this case; for as appears by the record the case was tried, and witnesses questioned by both sides without objection, on the theory that if plaintiff was entitled to recover at all the measure of his damages would be the depreciation in value of the property brought about by the location of the stock yards.' "
In Peterson v. Universal Automobile Ins. Co., 53 Idaho 11,20 P.2d 1016, 1022, we held:
"The appellant will be held to the same theory on which the case was tried in the lower court. . . . . The appellant having assumed that it was incumbent upon him to allege and prove the allegations of his amended complaint, and, while doing so, establishing the fact that he was not entitled to recover on the theory on which the case was tried, he will be held to that theory, notwithstanding the fact that respondent did not allege the breach of the terms of the policy as an affirmative defense."
The appellant is not before us complaining that the lower court should have held that the transaction was an executed gift, or executed contract, but that the court erred in not holding that the instrument was an executory contract enforceable during the lifetime of the deceased. As to that *Page 531 about which the appellant complains, the majority opinions say that the lower court was right. As I understand the duties of this court, we are to pass upon the issues as presented by the litigants, but not to frame the issues and advance the theories upon which one or the other of the litigants may successfully prosecute their claim. I, therefore, respectfully dissent.
Givens, J., joins in this dissenting opinion.
ON PETITION FOR REHEARING.