It is settled by the decisions of this court and the Supreme Court that if the parties on the trial of the case offer evidence without objection, tendering a defense required to be specially pleaded, and the trial court in disposing of the case takes notice of the defense thus tendered and submits the issue to the jury, on appeal the case will be treated as if the issue was properly presented by special plea. A. C. L. Ry. v. Kelly,77 So. 972;1 R. D. R. R. Co. v. Farmer, 97 Ala. 141,12 So. 86; K. C., M. B. R. R. Co. v. Burton, 97 Ala. 240,12 So. 88; Gainer v. Southern Railway Co., 152 Ala. 186,44 So. 652.
So, if it be conceded that the averments of the complaint in this case are not broad enough to present the question of plaintiff's legal responsibility for the charges admitted to be in arrears for water furnished, on the issues tendered by the general issue, it is manifest from the evidence that this was the litigated fact in the case, and that this issue was submitted to the jury by the ex mero motu charge of the court.
On this issue the undisputed evidence shows that the house where the water was supplied by appellant at the time the charges for water in arrears accrued was rented in the name of Mrs. Powell; that Mrs. Powell *Page 675 and the plaintiff and his family went into the occupancy of the premises at the same time; that there was but one water connection, and all the water furnished was used in common by Mrs. Powell and the plaintiff and his family. On these facts, the plaintiff was jointly liable with Mrs. Powell for the rents in arrears, and the undisputed evidence shows that the appellant demanded payment from him before refusing to furnish water, and he refused to pay these charges. It is further shown that the charges were correct and justly due. Birmingham Waterworks Co. v. Brooks, ante, p. 209, 76 So. 515; s. c.,200 Ala. 697, 76 So. 995.
On the question of waiver, it appears that, when the defendant turned the water on at the instance of the plaintiff, it did so on the representation of plaintiff that he had just moved in, and without knowledge of the fact that plaintiff had occupied the premises jointly with Mrs. Powell, and used, in common with her, the water supplied through defendant's mains for the time the rents were due and unpaid, and as soon as it ascertained these facts the water was cut off. We do not think these facts can justly be held to constitute a waiver of the defendant's right to insist that the rents in arrears should be paid before it would supply the plaintiff water. We entertain the view that the court should have directed a verdict for the defendant.
Reversed and remanded.
1 Ante, p. 360.