McCOURT, J.
Plaintiff brought this action to recover upon three promissory notes, upon each of which the names of the defendants, A. A. Allen and Susie Allen, husband and wife, appeared as makers. A. A. Allen failed to answer the complaint, and judgment by default was entered against him. Susie Allen, who will be hereafter referred to as “defendant,” answered by a general denial of the allegations of the complaint. The notes called for principal sums respectively as follows: $300; $200; and $95.26.
A jury trial resulted in a verdict and judgment for plaintiff. Defendant appeals, and predicates error upon the admission of evidence, introduced over defendant’s objection, for the purpose of proving an estoppel, and upon an instruction given the jury in relation to that evidence.
Defendant disclosed at the commencement of the trial that the specific defense upon which she relied was that her signature upon each of the notes in suit was a forgery.
Plaintiff introduced evidence to show that defendant signed each of the notes, and anticipating that defendant in her testimony would deny executing the notes, introduced three letters plaintiff had written to defendant, demanding payment of the notes, also evidence that defendant had not, upon receipt of the several letters, denied the genuineness of her purported signatures upon the notes.
In an endeavor to show that it had been misled to its injury by the failure of defendant to deny signing the notes promptly upon receipt of demand of payment, and that defendant was on that account estopped [192]*192from. claiming that the notes were not executed by her, plaintiff offered in evidence two deeds from A. A. Allen and Susie Allen to their daughter and her husband. These deeds were executed some time after the last of the letters referred to was written, and conveyed all of the property of A. A. Allen, and some of that of Susie Allen, to the grantees therein. Defendant interposed an objection to the introduction of the deeds mentioned on the ground that they were incompetent, irrelevant and immaterial. The objection was overruled, and defendant was allowed an exception to the ruling of the court.
The evidence of both plaintiff and defendant, however, showed that defendant, in an interview with the president of plaintiff, which interview took place several weeks before the execution of the deeds and before the rights of plaintiff had been impaired in any way, had denied that she signed the notes in question; this defeated the attempt of plaintiff to show that it had been placed in a worse position by the silence of defendant at a time when she was required to speak, and removed from the case all question of an estoppel against defendant.
Defendant introduced evidence to prove that she did not sign any of the notes in suit; she appeared as a witness in her own behalf, and denied that she executed any of the notes, and gave evidence of circumstances from which it might have been inferred that her husband and codefendant signed her name to the several notes without her authority. Defendant also testified at length respecting the execution of the deeds to her daughter and husband, stating that they were executed pursuant to a long deferred intention to transfer the property described therein to the grantees.
[193]*193The court, after instructing the jury that the only question for their determination was whether or not defendant executed the notes, and that if she did, she was liable thereon, and if she did not, she was not liable thereon, charged the jury as follows:
“If a man- forges any one of your names to a note, and passes it on to a third person — to a bank, for instance, and the bank writes you and informs you that they have a note against yon, and yon, by your silence, by refusing to answer the letter, would lead the bank into a worse position than it was before, you would be estopped from denying that it was your signature. ”
Defendant was allowed an exception to the portion of the court’s instruction, above quoted.
The court further informed the jury that the deeds in question, and testimony relating to them, had been offered and admitted in evidence for the purpose of showing that plaintiff had been misled to its prejudice by the conduct of defendant, but that inasmuch as the testimony in the case showed that defendant did deny her signature before the transfer of the property, there was no evidence in the case to show that plaintiff had been placed in a worse position by reason of defendant’s failure to reply to the letters, which plaintiff had addressed to her concerning the notes in suit; the court also explained that the deeds had been admitted in evidence, because the court was not advised until after the deeds had been received in evidence that defendant had denied signing the notes before the transfer was made.
Defendant contends that it was error to admit evidence for the purpose of establishing an estoppel and to instruct the jury concerning the same, for the reason that no estoppel was pleaded by plaintiff.
[194]*194The rule is well established that a party to an action must plead the facts which he relies upon to establish an estoppel in pais if there is opportunity to do so, and that a failure to so plead precludes him from taking advantage of such estoppel: Vogt v. Marshall Wells Hdw. Co., 88 Or. 458, 464 (172 Pac. 123), where the earlier decisions upon this point are collected.
It is equally well established, however, that the facts relied upon to establish an estoppel need not be pleaded where there is no opportunity to do so: Morback v. Young, 58 Or. 135 (113 Pac. 22); West Side Lumber & Shingle Co. v. Herald, 64 Or. 210 (128 Pac. 1006, Ann. Cas. 1914D, 876); Stamm v. Wood, 86 Or. 174 (168 Pac. 69).
In its complaint, plaintiff sought to fix liability upon the defendant, as an actual maker of the notes, and upon no other ground. It was alleged therein that plaintiff executed each of the notes. Defendant answered by a general denial. As above indicated, plaintiff was informed by defendant several months before the action was brought, and several weeks before the execution and delivery of the deeds joined in by A. A. Allen and herself, above mentioned, that she did not sign the notes. In that situation, if plaintiff desired to proceed upon the theory that although defendant had not executed the notes, as claimed by her, she had rendered herself liable thereon by conduct which had misled plaintiff to its injury, it was incumbent upon plaintiff to plead in its complaint, the facts which it claimed estopped defendant from denying that she executed the notes.
In the case of Morback v. Young, 58 Or. 135 (113 Pac. 22), this court announced the rule applicable [195]*195in such cases. Mr. Justice Moore, speaking for the court, said:
“We think the better rule is that if, before an ultimate pleading is filed by a party, he knows that evidence must be offered to prove the conduct of an adverse party as a bar to the latter’s assertion of a fact essential to the maintenance of a suit or action or requisite to a defense, the opportunity has arisen to plead the conduct relied upon as a bar and a failure to set forth the facts constituting the estoppel in pais will prevent the party upon whom the burden is cast from introducing evidence to substantiate the plea.”
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McCOURT, J.
Plaintiff brought this action to recover upon three promissory notes, upon each of which the names of the defendants, A. A. Allen and Susie Allen, husband and wife, appeared as makers. A. A. Allen failed to answer the complaint, and judgment by default was entered against him. Susie Allen, who will be hereafter referred to as “defendant,” answered by a general denial of the allegations of the complaint. The notes called for principal sums respectively as follows: $300; $200; and $95.26.
A jury trial resulted in a verdict and judgment for plaintiff. Defendant appeals, and predicates error upon the admission of evidence, introduced over defendant’s objection, for the purpose of proving an estoppel, and upon an instruction given the jury in relation to that evidence.
Defendant disclosed at the commencement of the trial that the specific defense upon which she relied was that her signature upon each of the notes in suit was a forgery.
Plaintiff introduced evidence to show that defendant signed each of the notes, and anticipating that defendant in her testimony would deny executing the notes, introduced three letters plaintiff had written to defendant, demanding payment of the notes, also evidence that defendant had not, upon receipt of the several letters, denied the genuineness of her purported signatures upon the notes.
In an endeavor to show that it had been misled to its injury by the failure of defendant to deny signing the notes promptly upon receipt of demand of payment, and that defendant was on that account estopped [192]*192from. claiming that the notes were not executed by her, plaintiff offered in evidence two deeds from A. A. Allen and Susie Allen to their daughter and her husband. These deeds were executed some time after the last of the letters referred to was written, and conveyed all of the property of A. A. Allen, and some of that of Susie Allen, to the grantees therein. Defendant interposed an objection to the introduction of the deeds mentioned on the ground that they were incompetent, irrelevant and immaterial. The objection was overruled, and defendant was allowed an exception to the ruling of the court.
The evidence of both plaintiff and defendant, however, showed that defendant, in an interview with the president of plaintiff, which interview took place several weeks before the execution of the deeds and before the rights of plaintiff had been impaired in any way, had denied that she signed the notes in question; this defeated the attempt of plaintiff to show that it had been placed in a worse position by the silence of defendant at a time when she was required to speak, and removed from the case all question of an estoppel against defendant.
Defendant introduced evidence to prove that she did not sign any of the notes in suit; she appeared as a witness in her own behalf, and denied that she executed any of the notes, and gave evidence of circumstances from which it might have been inferred that her husband and codefendant signed her name to the several notes without her authority. Defendant also testified at length respecting the execution of the deeds to her daughter and husband, stating that they were executed pursuant to a long deferred intention to transfer the property described therein to the grantees.
[193]*193The court, after instructing the jury that the only question for their determination was whether or not defendant executed the notes, and that if she did, she was liable thereon, and if she did not, she was not liable thereon, charged the jury as follows:
“If a man- forges any one of your names to a note, and passes it on to a third person — to a bank, for instance, and the bank writes you and informs you that they have a note against yon, and yon, by your silence, by refusing to answer the letter, would lead the bank into a worse position than it was before, you would be estopped from denying that it was your signature. ”
Defendant was allowed an exception to the portion of the court’s instruction, above quoted.
The court further informed the jury that the deeds in question, and testimony relating to them, had been offered and admitted in evidence for the purpose of showing that plaintiff had been misled to its prejudice by the conduct of defendant, but that inasmuch as the testimony in the case showed that defendant did deny her signature before the transfer of the property, there was no evidence in the case to show that plaintiff had been placed in a worse position by reason of defendant’s failure to reply to the letters, which plaintiff had addressed to her concerning the notes in suit; the court also explained that the deeds had been admitted in evidence, because the court was not advised until after the deeds had been received in evidence that defendant had denied signing the notes before the transfer was made.
Defendant contends that it was error to admit evidence for the purpose of establishing an estoppel and to instruct the jury concerning the same, for the reason that no estoppel was pleaded by plaintiff.
[194]*194The rule is well established that a party to an action must plead the facts which he relies upon to establish an estoppel in pais if there is opportunity to do so, and that a failure to so plead precludes him from taking advantage of such estoppel: Vogt v. Marshall Wells Hdw. Co., 88 Or. 458, 464 (172 Pac. 123), where the earlier decisions upon this point are collected.
It is equally well established, however, that the facts relied upon to establish an estoppel need not be pleaded where there is no opportunity to do so: Morback v. Young, 58 Or. 135 (113 Pac. 22); West Side Lumber & Shingle Co. v. Herald, 64 Or. 210 (128 Pac. 1006, Ann. Cas. 1914D, 876); Stamm v. Wood, 86 Or. 174 (168 Pac. 69).
In its complaint, plaintiff sought to fix liability upon the defendant, as an actual maker of the notes, and upon no other ground. It was alleged therein that plaintiff executed each of the notes. Defendant answered by a general denial. As above indicated, plaintiff was informed by defendant several months before the action was brought, and several weeks before the execution and delivery of the deeds joined in by A. A. Allen and herself, above mentioned, that she did not sign the notes. In that situation, if plaintiff desired to proceed upon the theory that although defendant had not executed the notes, as claimed by her, she had rendered herself liable thereon by conduct which had misled plaintiff to its injury, it was incumbent upon plaintiff to plead in its complaint, the facts which it claimed estopped defendant from denying that she executed the notes.
In the case of Morback v. Young, 58 Or. 135 (113 Pac. 22), this court announced the rule applicable [195]*195in such cases. Mr. Justice Moore, speaking for the court, said:
“We think the better rule is that if, before an ultimate pleading is filed by a party, he knows that evidence must be offered to prove the conduct of an adverse party as a bar to the latter’s assertion of a fact essential to the maintenance of a suit or action or requisite to a defense, the opportunity has arisen to plead the conduct relied upon as a bar and a failure to set forth the facts constituting the estoppel in pais will prevent the party upon whom the burden is cast from introducing evidence to substantiate the plea.”
The plaintiff in this case offered the evidence in support of its claim that defendant was estopped to deny she had signed the notes, before any evidence had been offered in the case by defendant. Plaintiff was permitted to proceed as though an estoppel had been pleaded in the complaint, contrary to the rule above quoted.
However, it is clear that the evidence offered by plaintiff fell far short of establishing an estoppel; the court so informed the jury, and withdrew the same from their consideration, explaining that the evidence had been admitted under a misapprehension, and at the same time advised the jury that the plaintiff could not recover unless the jury were satisfied from the evidence, that defendant executed the notes.
While the court did not explain the matter to the jury as clearly as might be desired, yet it is not apparent that the jury were confused or misled by the introduction and withdrawal-of the objectionable evidence.
Moreover, after an examination and consideration of the whole testimony and the instruction of the [196]*196court to the jury, a transcript of which is attached to the bill of exceptions herein, this court is clearly of the opinion that the judgment of the Circuit Court appealed from was such as should have been rendered in the case. In view of that fact, we are empowered to, and do, affirm the judgment, notwithstanding there may have been a technical failure .on the part of the trial court to correct the error committed in the admission of evidence: Sec. 3c, Art.' VII, Const.
Judgment affirmed. Affirmed.
Harris and Rand, JJ., concur in the result.