Fletcher v. Reaves , 28 Ga. App. 205 ( 1922 )

Hill, J.

(After stating the foregoing facts.)

1. There was no conflict in the evidence on the question of whether or not the plaintiff was estopped from claiming title to the property. The defendant testified that he bought the property on account of the statement of the plaintiff that the property had been previously sold by her to the defendant’s vendor. He further testified that he would not have bought the property from his vendor if he had known that the plaintiff was retaining title. The plaintiff admitted that she might have told the defendant what the defendant swore she had told him. She did not deny it. She was therefore estopped from setting up title to the property. Roberts v. Davis, 72 Ga. 819 (1); McCune v. McMichael, 29 Ga. 312.

2. It is contended by the defendant in error “that estoppel, when relied on, must be specially pleaded. This is generally true. Madison Supply Co. v. Richardson, 8 Ga. App. 344 (5) (69 S. E. 45). But, where evidence as to an estoppel is admitted without objection, the issue may be made. Price v. Hallett, 138 Mo. 561 (38 S. W. 451). As was said in the case last cited: “It has often been decided by this court that estoppel in pais must be pleaded. . . It seems to us this doctrine has peculiar weight when invoked against the admissibility of evidence when no issue of estoppel has been tendered in the pleadings, or when an estoppel in pais is urged for the first time in this court; but where parties have permitted an issue of this kind to be raised by the evidence without objection and have had full opportunity to try the issue, we are unable to draw a distinction between such a case and those cases in this State in which parties have neglected to file replies, and this court has held that it was too late, after trying the case as if a reply had been filed, to claim that the answer was admitted. Had a timely objection been made when this evidence tending to show an estoppel was offered, . . it would have been excluded,, or the court would have permitted an amendment pleading such estoppel, but no such objection appears to have been made at that time, and now that the evidence has been heard and the instruction given upon it, we think it is too late to raise the question of pleading on that point. We. shall treat the record now as if the amendment had been prayed and permitted.” In other words, 'the party failing to object to evidence of an estoppel is estopped from denying that a plea of estoppel was filed. When no plea was filed the door was closed but not locked. When the evidence was admitted without objection the door was opened again. Had objection been made to the admission of the evidence, the door would have been closed again and locked, unless it could have been opened again with a key in the shape of an amendment. It is too late now, in this court, to complain that the defendant had no key when he opened the door which was not locked. See Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.