Lead Opinion
Thеse defendants appeal from a judgment entered against them in a suit by the buyers of a new home. They contend that the trial court based its decision on a theory not alleged in the pleadings and, in so doing, denied them an opportunity to present a defense to that theory. They request judgment in their favor or, in the alternative, reversal and remand for a new trial. We reverse the judgment of the trial court and remand the case with instructions.
The defendant Woller Construction Company began constructing a home with the intent of selling it. Shortly before completion, defendants Francis J. Woller and Linda D. Woller sold the house to the plaintiffs. Construction was completed before thе buyers took possession.
Suit was filed against the contractor-vendors alleging they
breached . . . oral and written warranties to Plaintiffs in that аdequate steps were not taken by the builder to rid the building site of either surface water or sub-surface water [and] adequate steps were not taken to prevent frost damage and cracking of concrete in the сonstruction.
As a direct and proximate result of the aforesaid breaches by Defendants [, the Plaintiffs suffered damage]. [Emphasis added.]
The petition was thus limited to express warranties, “oral and written,” and was never amended to allege other bases for liability. Despite the fact plaintiffs’ attоrney consistently elicited testimony from his own expert witness about proper construction practice, testimony relevant to implied warranties, he never mentioned any theory of recovery other than the breach of the express warranties.
During trial, defense counsel attempted to restrict plaintiffs’ proof to express warranties, particularly whether the building was constructed in accordance with the written specificаtions. Typical of his objections is the following:
[A]gain we renew our objection to this line of inquiry [. T]he witness is limited to expressing an opinion as to what is called for in the plans and specifications [and] not what this witness thinks should or should not bе in [good] construction [practice].
These objections were overruled.
The trial court, in its findings of fact, stated that “[p]laintiffs had no discussion with defendant prior to the purchase and there were no oral or written agreements or representations by defеndants to plaintiffs regarding the quality or construction of the home.” In its conclusions of law, therefore, the court determined that “[defendant did not breach any written or oral representations as to the quality or construction of the home and plaintiffs are not entitled to recover on any such breach.” (Emphasis added.) Judgment was then entered for plaintiffs on another theory — that of implied warranty of habitability. Therefore, despite the fact that express warranty was the only theory pled by the plaintiffs and the trial court found no evidence to support it, judgment was nonetheless entered for the plaintiffs. The court reasoned that “to deny Plaintiffs recovery because they sought recovery on an express warranty rather than the implied warranty seems too fine a distinction for modern pleading.”
Defendants contend that the trial court’s adoption of this new theory, when it had not beеn pled, constituted a fatal variance and denied them a fair trial.
Our Rule of Civil Procedure 106 deals with the problem of variance:
No variance between pleading and proof shall be deemed material unless it is shown to have misled the opposite party to his prejudice in maintaining his cause of action or defense. But where an allegation or defense is unproved in its general meaning, this shall not be held a mere variance but a failure of proof.
We conclude there was a variance in this case between the allegations of the petition and the legal basis relied upon by the court in granting plaintiffs’ recovery. Under our rule, we must determine whether the variance was so substantial as to mislead the defendants and to prejudice them in the preparation of their response to the allegations.
It is true that this court has expressed a reluctance to reverse on the basis of vari-
In addition, it is not disputed that the theory adopted by the court was new to Iowa.
This court hаs held that where pleadings allege an implied contract and the proof establishes an express contract, or vice versa, the result is a fatal variance. See, e. g., Waymann v. City of Cherokee,
Under the circumstances of this case, defendants were not given notice of the theory relied upon sufficient to allow them to make an adequate response. We therefore must set aside the judgment of the trial court. There is authority for reversal with an order for judgmеnt for the defendants under similar circumstances. In Ross v. Miller,
Such a disposition would be harsh under the circumstances here because it would unduly punish the plaintiffs for their ex
Allowance of leave to amend to conform to the proof is largely in the discretion of the trial court. B & B Asphalt Co. Inc. v. T. S. McShane Company, Inc.,
REVERSED AND REMANDED WITH INSTRUCTIONS.
Notes
. See discussion in 2 A. D. Vestal and P. Willson, Iowa Practice § 34.22, at 58-60 (1974).
. Id. at 56.
. Although the concept has been increasing in its acceptance, see, Annot.
.1 Vestal & Willson, supra note 1, § 1301, at 56-57 (Supp.1977). See also United States v. Metro Development Corp.,
Dissenting Opinion
(dissenting).
Although I agree this case must be reversed, I disagree with the majority in. its decision to remand for a new trial. I would, instead, dismiss plaintiffs’ petition.
The case was fully tried, and successfully defended, on plaintiffs’ own pleaded theory. Now the majority, while conceding plaintiffs failed to prove that claim, says they should have a second opportunity to prove a different one.
■To me this is indeed a strange result. Ordinarily the parties choose the issues. Courts then try cases оn those issues. Any other rule will surely lead to judicial chaos;
In the present case plaintiffs chose— wrongly — how they wanted to try their claim. It was apparent throughout the trial that defendants were challenging their choice of remedy. Yet at no time did plaintiffs seek to amend to assert the theory this court now says they should have pursued. Plaintiffs simply elected not to go that route.
Furthermore the majority’s apparent reliance on notice рleading seems to me to be misplaced. Pleading precedes, not follows, trial and judgment. This court should not give posthumous effect to notice pleading by applying it after the case is over when it was not resorted to while the case was alive. Plaintiffs forfeited their right to rely on notice pleading by setting out the specific basis of their claim. They should be held to their failure of proof.