[33 Del.Ch. 284] Robert C. Barab, of Wilmington, for plaintiff-below, appellant.
Richard F. Corroon, of Berl, Potter & Anderson, of Wilmington, and Harmon Duncombe and George Rowe, Jr., of New York City, for defendant-below, appellee.
WOLCOTT and TUNNELL, Justices, and RICHARDS, President Judge.
This cause comes on for decision following re-argument. The opinion up for reconsideration is reported in Del., 90 A.2d [33 Del.Ch. 285] 660. Reference to Del., 91 A.2d 57, 60, will disclose that defendant was granted this re-argument for the limited purpose of showing, if it could, that the conclusions heretofore announced by the court were in contravention of the terms of Para. 2046, Revised Code of Delaware 1935.
In connection with the re-argument, however, plaintiff has urged that this statute which was assigned as the subject of the re-argument  should, nevertheless, not be given consideration, because the defendant, by waiting so long to raise it, has lost the right to do so.
First, it is charged that defendant waived the statutory defense by failing to call it to the attention of the trial court, and, in this connection, plaintiff points to three decisions in which this court refused to consider arguments raised for the first time on appeal: Equitable Trust Co. v. Gallagher, Del., 77 A.2d 548; Trout v. Farmers' Trust Co., 19 Del.Ch. 437, 168 A. 208; and Stephenson v. Commonwealth & Southern Corp., 19 Del.Ch. 447, 168 A. 211.
In all three of the cited cases, however, it appears that what this court refused to do was to consider some ground of alleged error which had not been brought to the attention of the trial court. It is the law that while allegations of error which were never called to the attention of the trial court may not thereafter be relied upon to support an appeal, nevertheless, a reason for sustaining the judgment, if based upon the record sent up, may be urged for the first time in the appellate court. 5 C.J.S., Appeal and Error, § 1464, page 72; Bigger v. Unemployment Compensation Commission, 4 Terry 553, 558, 53 A.2d 761, 767; Maurer v. International Re-Insurance Corp., Del., 86 A.2d 360, 365. It cannot, of course, be contended that a statute is not in the record. If this statute is applicable, therefore, and its effect would be to support the judgment, the failure to urge it below will not preclude it here.
But, overlooking the omission in the trial court and accepting the proposition that defendant could have raised this [33 Del.Ch. 286] statute by timely reference to it in the appeal, plaintiff still says it came too late. This second objection is based upon the fact that the statute was not mentioned in defendant's original argument in this court, nor even in its original petition for re-argument, but appears for the first time in a proposed amendment to the petition for re-argument. As authority for her view, plaintiff cites this dictum out of our recent opinion in Kerbs v. California Eastern Airways, Inc., Del., 91 A.2d 62, 63:
'Since the appeal has been fully argued and carefully considered under one theory, it might well be questioned whether review by way of re-argument upon a different theory should be permitted, unless circumstances afford a reasonable excuse for the failure initially to clearly present the different theory.'
We consider the situation now before us, however, to differ materially from the one in the Kerbs case.
Bearing in mind this reference by Justice Wolcott to an exception to the general rule, let us, therefore, recall the circumstances attending the present appeal. In the trial court both parties pressed for summary judgment. Defendant was awarded such a judgment. In this court both parties agreed that summary judgment was the proper form of final order for the Court of Chancery to have entered; they differed only as to who was to be awarded that judgment. Neither party ever lent the slightest encouragement to any disposition the court might have displayed toward remanding the case for trial. Nevertheless, the court, exhibiting the obstinacy which is one of the prerogatives of the bench, ultimately filed an opinion that trial would be required. Faced with the prospect of a trial--a solution injected into the case by the court--plaintiff says that defendant should all the time have anticipated such a turn of events and should have cited the statute 'arguendo'.
It would, of course, have been in order for defendant to press this statute as an alternative argument. Such alternative contentions are constantly made, and, indeed, in the usual circumstances they must be made at the time appointed for argument, or they are waived. But it is also the common practice for good lawyers, in defending a judgment in their favor, to do no more than to meet the arguments raised by the appellants, without assuming[33 Del.Ch. 287] the added burden of anticipating all the alternative courses the court might adopt on its own initiative. If it is within our powers to remand the case for trial, which no one will deny, and thereby to give plaintiff a substantial advantage which her counsel has not expressly sought, then we must possess the corresponding discretionary power to allow the defendant to meet the new situation thereby created.
We agree with plaintiff that this statutory argument should have been raised at least in the original petition for re-argument, instead of in an amendment, and so, of course, does defendant. But defendant, having omitted a point which it now believes to be important, moved promptly to correct its omission. The motion to amend the petition was made prior to the court's consideration of the problem of re-argument, and neither the plaintiff nor the court has suffered any inconvenience by reason of the delay. Plaintiff's immediate objection, therefore, is ultimately reducible to the general disfavor of permitting any ...