A party whose case at trial was confined to an oral agreement for sale of land cannot advance on appeal a materially different case that the contract was formed partly orally, partly by conduct, and partly in writing, where the new case would deny the respondent the opportunity to test the efficacy of alleged contractual documents. A conversation in which one party states their terms for sale, without words of acceptance by the other party, does not objectively amount to a concluded agreement, and subsequent conduct cannot transform such a non-bargain into a binding contract.
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