I concur in the opinion of Hr. Justice HcLaughlin, with the exception that I think the plaintiffs sufficiently pleaded waiver and estoppel on the part of the defendant with respect to the period of limitation for bringing the action prescribed in the policy. Plaintiffs were not obliged to anticipate this defense by alleging in the complaint facts showing waiver or estoppel. When the defense was pleaded they were at liberty to meet it, with or without a reply, by any proof tending to show that the defendant had *250waived its right or had, by its acts, become estopped from interposing that defense. Aside from this, however, the plaintiffs formally replied to the defense and set tip facts sufficient, if . established, to show' waiver or estoppel. The general counsel of the defendant, who, in its behalf, was conducting the defense of the actions against the bridge company, was authorized to induce the plaintiffs to come in and aid in the defense of that action and to. rely upon his company protecting them under their policy of insurance with it; and if, as the evidence tends to show, he led the plaintiffs to refrain from- employing other counsel and leave the matter in his hands on the express assurance that his company would defend them against any and all actions arising out of that action, to the full- extent of the policy, the casualty company should be held to have waived its right, and should be deemed estopped' from asserting its right, to defend this action as not having been timely brought within the provisions of the policy, if, but for.such acts'of' waiver and estoppel, the rights of the plaintiffs' could and might have been preserved.
The evidence of waiver and estoppel, however, having been stricken out, is not available to the respondents on this appeal. I merely wish to express my opinion that that evidence was admissible and. available to the plaintiffs without any further amendment of their pleadings.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.