¶1(concurring specially).
¶2I am in complete agreement with the majority opinion. I write separately to make one additional observation: It is apparent from the trial judge’s decree that he held the Plaintiff to common law standards of pleading and rejected Plaintiff’s evidence which did not comport strictly to the allegation of his complaint. This is in direct conflict with both the letter and the spirit of Rule 15(b).
¶3Indeed, while I agree that the request to amend should have been granted, under the trial court’s express findings, a judgment should have been entered for the Plaintiff without the necessity of any amendment to the pleading. Clearly, the case was tried on all conceivable issues, including breach of warranty as well as negligence. The trial court recognized the construction deficiency on the part of the Defendant and Plaintiff’s resultant damage. To deny liability under these circumstances is to resurrect and breathe new life into a corpse long since dead and buried.