Hirsch Rolling Mill Co. v. Milwaukee & Fox River Valley Railway Co.
161 N.W. 741
Wis.
1917
Check Treatment
Rosenberry, J.

Defendant contends that the contract of November 8th, being one required by the statute of frauds to *223be in writing, cannot be modified by. parol agreement so as to ■extend tbe time for delivery of tbe rails beyond January 22, 1908. We do not find it necessary to determine that matter in tbis case. Tbe jury having found that tbe defendant did make a parol agreement by wbicb tbe time of performance was extended beyond tbe 22d day of January, 1908, and it appearing by tbe undisputed testimony that plaintiff relied tbereon, and it appearing that but for sucb oral agreement it would bave made delivery witbin tbe time specified in tbe contract, we are of tbe opinion that defendant is estopped from taking advantage of tbe failure of tbe plaintiff to comply with tbe terms of tbe original contract. Thompson v. Poor, 147 N. Y. 402, 42 N. E. 13; Smiley v. Barker, 83 Fed. 684; Stearns v. Hall, 9 Cusb. 31; Kingston v. Walters, 16 New Mex. 59, 113 Pac. 594; Scott v. Hubbard, 67 Oreg. 498, 136 Pac. 653; Longfellow v. Moore, 102 Ill. 289. One party to a contract cannot invoke tbe statute of frauds to close tbe door to a trap in wbicb tbe other party may be caught by reason of having rdlied upon an oral agreement made between tbe parties. Here tbe plaintiff tendered performance witbin tbe time fixed by tbe parol agreement and the defendant refused to accept the goods for tbe reason that tbe offer to perform was too late. • Under tbe facts in tbis case tbe defendant is estopped from asserting tbe invalidity of tbe parol agreement and must respond in damages.

Appellant urges that plaintiff cannot bave tbe benefit of an estoppel in this action because an estoppel was not pleaded. Ordinarily estoppel must be pleaded. Lawton v. Racine, 137 Wis. 593, 119 N. W. 331. However, if tbe facts showing tbe estoppel are witbin the issues made by tbe pleadings and tbe evidence showing tbe estoppel is admissible for any purpose thereunder, it is- not necessary that tbe estoppel should be specially pleaded. In tbis case every material fact necessary to create an estoppel was alleged in tbe pleadings, except there was no allegation therein that plaintiff relied upon tbe oral agreement and for that reason failed to make *224delivery witbin the time specified in the contract. The complaint, however, does contain an allegation that the plaintiff duly discharged all of its obligations under said contract by the performance and tender of performance and by waiver of performance by the defendant, or all or part of such methods. Under the circumstances of this case an allegation that the defendant has waived performance is equivalent to an allegation that the plaintiff acted upon the parol agreement, for otherwise there could be no waiver. The plaintiff having acted upon the parol agreement must have relied upon it. While waiver and estoppel are not always the same, the terms are often used interchangeably.. Roberts v. Northwestern Nat. Ins. Co. 90 Wis. 210, 62 N. W. 1048. The evidence establishing the fact that plaintiff did so rely upon the parol agreement and that except for it delivery would have been made in accordance with the terms of the original contract as modified, was brought out upon cross-examination by the defendant and came in without objection. We are of the opinion that the trial court correctly held that estoppel was sufficiently pleaded.

By the Gourt. — Judgment affirmed.