G & H Land & Cattle Co. v. Heitzman & Nelson, Inc. , 102 Idaho 204 ( 1981 )

BISTLINE, Justice,

specially concurring.

In the present case, the respondent urged and argued the provisions of the U.C.C. to the trial court. Hence I concur. However, it is necessary to comment on the statement by the Court that “case law is replete with decisions holding that if a decision of a lower court is correct, but is founded on an incorrect theory, it will be affirmed on appeal upon the correct theory.” This statement is correct only insofar as it goes, which is a bit short. There is another well established and complete rule that parties will be held to the theories upon which the cause was tried in the lower court. Silver Syndicate, Inc. v. Sunshine Mining Co., 101 Idaho 226, 611 P.2d 1011 (1979); Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968); Christensen v. Stucklik, 91 Idaho 504, 427 P.2d 278 (1967); Frost v. Mead, 86 Idaho 155, 383 P.2d 834 (1963); Robinson v. Spicer, 86 Idaho 138, 383 P.2d 844 (1963). I must again emphasize that this Court ought not find itself affirming on a theory differing from that used by the trial court where that different theory was not presented to the trial court. It is a corollary of the rule that this Court ought not reverse on a theory never advanced in the trial court, and not even urged in this Court, a most recent and glaring example of which was Lamb v. Robinson, 101 Idaho 703, 620 P.2d 276 (1980).