Appeal from the Circuit Court of Boone County; the Hon. ARTHUR
V. ESSINGTON, Judge, presiding. Judgment reversed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The defendant, Charles H. Mann, prosecutes this appeal from a judgment entered by the trial court at a bench trial, in favor of the plaintiff, Lloyd W. Broberg, in the sum of $6,000. The genesis of this litigation was the plaintiff's purchase of certain land from defendant which plaintiff believed to contain approximately 26 acres, and which, in fact, contained only 18 acres.
The complaint alleged that the defendant represented to the plaintiff that the land in question contained approximately 26 acres, and that the defendant "well knew that the land described in the said deed of conveyance to the plaintiff and his wife was not in quantity the twenty-six acres of land as bargained for and paid for by plaintiff, and that the defendant by trick and device of substituting a new description by metes and bounds on the day that the deal was closed in the office of defendant's attorney and by fraudulently and falsely secreting and failing to inform the plaintiff or his attorney of the fact that the land described in the substituted description was not in fact and did not describe land in quantity of approximately twenty-six acres." It asserted that the plaintiff had been "damaged to the value of the shortage of eight acres unconveyed to him by defendant."
The defendant contends that the gravamen of plaintiff's complaint is an action for fraud and deceit; that the elements necessary to establish fraud and deceit have not been proven; and that the plaintiff may not in this court assert a right to recovery based upon mutual mistake. The plaintiff concedes in his brief that this is an action for fraud but states that whether he proved actual or active fraud, or mutual mistake, makes no difference in that under the circumstances of this case mutual mistake constitutes legal fraud warranting relief.
The plaintiff's case must stand or fall upon the fraud and deceit charged. The issues in this litigation, as in all cases, are determined from the pleadings and evidence; and an issue cannot be sustained by evidence, absent a corresponding pleading, or by a pleading, without supporting evidence. Burke v. Burke, 12 Ill.2d 483, 487, 147 N.E.2d 373 (1958); Consoer, Townsend & Associates v. Addis, 37 Ill. App.2d 105, 110, 185 N.E.2d 97 (1st Dist 1962). In Seaburg v. Williams, 23 Ill. App.2d 25, 161 N.E.2d 576 (2nd Dist 1959), at page 30, the Court stated:
"In Fornoff v. Smith, 281 Ill. App. 232, it was said, `It is a fundamental rule, with no exceptions, that a party must recover, if at all, on and according to the case he has made for himself by his pleadings. He cannot make one case by his averments, and have judgment on another and different ground, even though the latter is established by the proof. Feder v. Midland Casualty Co., 316 Ill. 552; Moss v. Johnson, 22 Ill. 633; Lake St. El. R. Co. v. Shaw, 203 Ill. 39.'"
Likewise, a party may not try a case upon one theory and then present to the court on appeal, for the first time, another and different theory. Benson v. Isaacs, 22 Ill.2d 606, 610, 177 N.E.2d 209 (1961); Consoer Townsend & Associates v. Addis, supra, 109; Continental Ill. Nat. Bank & Trust Co. of Chicago v. National Casket Co., 27 Ill. App.2d 447, 450, 169 N.E.2d 853 (1st Dist 1960). The reasons for prohibiting upon review, a change of the theory upon which a case has been tried, are apparent. The proof presented is determined largely by the pleadings, the issues, and the theories there made. To permit a recovery upon a theory which was neither pleaded nor presented below, would preclude the adverse party from presenting evidence in rebuttal thereof and from offering other further or attendant theories predicated thereon. Such procedure would violate the concept of fundamental fairness embraced in our Civil Practice Act, wherein the Legislature sought to liberalize the framework within which disputes are presented to the end that they may be determined on their merits upon a specification of the real issues involved. Fleshner v. Copeland, 13 Ill.2d 72, 77, 147 N.E.2d 329 (1958).
In this regard, section 46 of the Civil Practice Act (Ill Rev Stats 1965, c 110, Par 46) contains liberal provisions relative to the amendment of pleadings. So long as no prejudice will result to the adverse party, pleadings may even be amended in this court. App Ct Rule 26 (Ill Rev Stats 1965, c 110, Par 201.26). No amendment was here sought. Obviously, in this case a change in theory at this state of the litigation would prejudice the adverse party. Consequently, this action must be considered in this court as an action charging fraudulent misrepresentations by defendant wherein damages are sought by plaintiff.
Comprehensively stated, a misrepresentation to be the basis of a charge of fraud, either in a suit at law or in equity, must contain the following elements:
(1) It must be a statement of material fact, as opposed to opinion;
(3) the party making the statement must know or believe it to be untrue;
(4) the person to whom the statement is made must believe and rely on it, and ...