(dissenting)—I respectfully disagree with my brothers' refusal to consider the full impact of Robinson Tile & Marble Co. v. Samuels, 147 Wash. 445, 266 P. 701 (1928), in the present case. Whether counsel cited this case to us or to the Superior Court is immaterial. As stated in Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 623, 465 P.2d 657 (1970):
Courts are created to ascertain the facts in a controversy and to determine the rights of the parties according to justice. Courts should not be confined by the issues framed or theories advanced by the parties if the parties ignore the mandate of a statute or an established precedent. A case brought before this court should be governed by the applicable law even though the attorneys representing the parties are unable or unwilling to argue it.
See also Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972).
The facts are not in dispute. Johnson's Plumbing, at the request of Joleda, began to supply materials to the project. When Joleda defaulted in payment, Johnson's Plumbing exercised its right and withheld additional shipments of materials. When the effect of this action caused a delay in the project, Mr. Jeppesen, who was sole stockholder of the general contractor as well as vice-president, director, shareholder and the only on-site general agent of the owner, NuWestern, contacted Johnson's Plumbing and assured it of payment if it would recommence the shipment of materials. Based on this assurance, Johnson's Plumbing recommenced shipment, but was never paid. When Jeppesen's assurance proved to be illusory, Johnson's Plumbing attempted to salvage the situation by giving the materialman's notice. Now NuWestern contends that the lien of Johnson's Plumbing is invalid because of its failure to give the materialman's notice timely. This contention offends the established principles of equity which govern construction lien foreclosures. See Powell v. Nolan, 27 Wash. 318, 67 P. 712, 68 P. 389 (1902). As stated in the *455often cited case of Carruthers v. Whitney, 56 Wash. 327, 333, 105 P. 831 (1909):
Estoppel is an equitable proceeding, or speaking more accurately perhaps, it is the equitable result of a wrongful proceeding or act, a reliance upon which would, in the absence of an estoppel, work an injustice to an innocent person. . . . The well-understood idea of equitable estoppel is that, where a person wrongfully or negligently by his acts or representations causes another who has a right to rely upon such acts or representations to change his condition for the worse, the party making such representations shall not be allowed to plead their falsity for his own advantage.
While I agree with the Superior Court that NuWestern did not originally order the materials, the facts of this case demand that NuWestern be estopped to raise the failure of Johnson's Plumbing to give timely notice for the materials furnished pursuant to the request of Jeppesen, its vice-president, director and 25 percent shareholder. As stated in Robinson Tile & Marble Co. v. Samuels, supra at 447:
[T]he notice in these matters is intended for the protection of the owner; and the evidence in the instant case showing that the owner led the material furnisher into a position where it failed to give the statutory notice, the owner is now estopped from claiming that a notice was necessary after the other party, influenced by and relying upon his conduct, has changed its position to its injury.
Cf. Colby & Dickinson v. McCulloch, 145 Wash. 561, 566-67, 261 P. 86 (1927); Architectural Decorating Co. v. Nicklason, 66 Wash. 198, 200, 119 P. 177 (1911); Rieflin v. Grafton, 63 Wash. 387, 389-90, 115 P. 851 (1911); R.H. Freitag Mfg. Co. v. Boeing Airplane Co., 55 Wn.2d 334, 340, 347 P.2d 1074 (1959).
Because the majority decision remands this matter for further consideration as to the efficacy of the October 4, *4561974, notice, I would also ask the Superior Court to reconsider its decision in light of Robinson.
Petition for rehearing denied June 2, 1977.
Review denied by Supreme Court November 18, 1977.