ON MOTION FOR REHEARING.
MacIntyre, J.Counsel for the defendant in error (hereafter referred to as defendant) takes exceptions only to that part of the opinion containing a ruling adverse to him. It is insisted that we have erroneously applied the principle of estoppel against the defendant, under the facts presented. It is argued that two of the essential elements of equitable estoppel failed to appear in the evidence: (1) That there was any intended deception in the letters of March 3 and 4 (hereafter referred to as the letters), and (3) *342that the plaintiff was misled thereby. It is true, as a general rule, that there must have been some intended deception in the conduct or declaration of the person to be estopped; yet negligence- often may and does take the place of intended deception. If one be guilty of culpable negligence or negligence amounting to a breach of duty, an estoppel may arise though there was no actual intended deception. What difference can be gleaned, in so far as the ultimate rights of the plaintiff are concerned, whether these letters were sent through negligence, wilful indifference, or with actual intent to deceive, if it has placed itself in a position which it would have not assumed had it known that the facts stated by the defendant in its letters were not true ? That there is no difference is illustrated by the principle of the Code, § 38-116. The letters notified the plaintiff that the defendant rejected the contract relied upon. This is squarely inconsistent with the position now assumed, that the defendant had at that time accepted the same. If the plaintiff, after receipt of the letters, executed the same contract with Kline, which it would not have executed had it known that the representations of the defendant were false, we are satisfied, as originally announced, that the defendant would be estopped to deny the truth of the representations made in the letters. There is evidence that shows very clearly that after receiving these letters the plaintiff dealt with the defendant on the assumption that the contract had been rejected, and that no contract existed between the parties. It is true that the evidence for the plaintiff shows that thereafter, to wit, on the 13th of March, a conference was had with Felton, wherein Felton refused to consummate a contract, and that thereupon a contract was entered into with Kline. The position is taken that this evidence demands a finding that the plaintiff did not act on and was not misled by the letters, but that it acted solely on his refusal on the 13th to consummate its agreement. The contract was rejected by these letters. According to the evidence most favorable to the plaintiff, no fact thereafter transpired which called into question the emphatic rejection. The fact that Felton personally, on March 13, refused to enter into the contract, was nothing more than a reiteration of the position taken in his last letters, and is corroborative of the fact that by reason of the letters the plaintiff believed and was acting upon the fact that the defendant had rejected the contract relied upon. We feel *343sure that the evidence amply authorized the jury to find that the plaintiff would not have entered into the contract with Kline had it not believed that the defendant had rejected their contract, as per the letters and as apparently reiterated by Felton on the 12th. If the jury should so find, we are of the opinion that the defendant would be estopped to set up the execution of the contract. The jury should have been instructed as to a finding on this state of facts. A failure so to instruct was a denial of a substantive right to the plaintiff.