1 I. There is a complaint that the court presented to the jury an issue of fact not involved in the pleadings. The plaintiff pleaded as a basis of recovery his purchase of the machine, the warranty thereof, a compliance with the conditions on his part, a breach thereof by defendant, and his liability to pay the note. The answer, by denials, put in issue the allegations as to a breach of the warranty and full compliance with the conditions of the warranty by plaintiff, and then, by way of affirmative defense, pleaded a settlement by the giving of the note after knowledge of the workings of the machine. The law operates as a denial of the averments as to settlement. No reply was filed. The issues arising from the denials in the answer were as to the breach of the warranty. The law put in issue the facts averred by defendant as to a settlement, that is, it denied that there was such a settlement. It appears *224from the evidence that the machine was not returned, as alleged by plaintiff, or as required by the terms of the war ranty, and there is evidence to show that it was retained beyond the time in which it should have been returned because of a request of defendant’s agent that plaintiff should retaiu the machine to further test it. The court, after admitting" such evidence, gave the following instruction: “You are instructed that the contract of warranty provides that continuous use of the. machine, or use of the same through the harvest season, shall be deemed an acceptance of the machine by the party so using the same. Now, in this case, if you find from said evidence, the plaintiff, after trying and testing said machine, and he could not make it do the work, he at onccnotified the. agents of defendant of that' fact, and you also find that said agents attempted to make the machine do the work, and failed to do so, it was then the duty of plaintiff, under-said contract, to return said machine to said agents at once; and you further find that plaintiff did not do so, or if you further find plaintiff used said machine during the harvest season of 1895, — he cannot recover in this action unless you find also from said evidence that the failure to return said machine -when he knew that it would not do the work was. because of the request of defendant or its agents that he should retain the same beyond said time, to further test said machine. And if you are satisfied from said evidence that defendant did so request plaintiff, then the failure to return the same within the time specified in said contract would not constitute an acceptance of the same by plaintiff.” The complaint as to the instruction is of that part pleaded in avoidance of plaintiff’s failure to return the machine as the contract required because of the agent’s request to retain it longer, for the reason that the pleadings in no way present such an issue; and the complaint seems to be well founded. If the purpose was to avoid the matter pleaded in settlement by defendant, it was proper matter for a reply, by admitting the facts, and pleading in avoidance the request to hold the machine.. *225Sucb is the office of reply. Code 1873, section 2665. See, also, Bank v. Wright, 84 Iowa, 728; Kervick v. Mitchell, 68 Iowa, 273. The effect of the request not to return the machine, as the contract required, was to waive the provision; and a waiver, to make it available, must be pleaded. Machine Co. v. Brower, 88 Iowa, 607. Such a waiver is in the nature of an estoppel, which must always be pleaded. Eikenberry v. Edwards, 67 Iowa, 14. If the evidence as to the request to hold the machine for a longer time was not intended to avoid the plea of settlement, then the facts should have been pleaded in the petition to show that' the contract was modified, and plaintiff then proven the contract as pleaded, and he should not plead it one way and prove it to be different. In any view of the case, the facts should have been pleaded to justify the evidence or the instruction as to the contract being changed. The judgment must be reversed.
