Opinion by
Me. Chief Justice Sterrett,While the testimony covers a great deal of ground and, in the opinion of learned counsel, appeared to involve a great many legal questions, the case virtually hinged on the question of fact — involving the principle of estoppel — which the learned trial judge submitted to the jury with correct and fully adequate instructions, and which they by their verdict determined in favor of the jplaintiff, viz: Did the defendant, Schuchert, by his request, induce the plaintiff to forego the requirements of *407the building contract, relative to the release of mechanics’ liens etc., and pay to the contractor the retained balance of money not theretofore applied on said contract?
While the testimony relating to this subject was more or less conflicting, it was quite sufficient to not only require its sub-mission to the jury, but also to justify them in finding, as they did, that the facts, of which estoppel was predicated, were as claimed by the plaintiff.
Referring to the provision in the building contract, that the retained balance (about $1,600) should only be payable when the entire work was completed and a full release of all mechanics’ liens, verified by affidavit, furnished to the plaintiff, the learned judge instructed the jury (inter alia) substantially as follows: If the plaintiff had insisted on this provision of the contract, as he might have done, and ought to have done, for the protection of the surety, if the matter stood just as it was when the contract was executed, — if he had insisted on that, he would have learned of the existence of these liens, and could have saved himself by paying them out of the retained balance, and thus could have saved the defendant; so that if that was all, — if you. find that to be the fact, then the plaintiff could not recover. But he goes further and says that when the house was finished or practically finished, when he was ready to pay the balance upon being assured that he was safe in doing so, he met Schuchert, and that, upon his own suggestion that he ought to insist upon this provision of the contract, “ Schuchert requested him not to do so, but to pay out the money.”
He further instructed the jury, “that if Schuchert did so request him, and that upon the inducement of that request, and because of it, he paid out that money without requiring this release of mechanics’ liens, this certificate that all material had been paid for, that then Schuchert is estopped to set that up as a defense. ... It would be grossly unfair to permit Schuchert to mislead him, to go to him and request him to forego a protection which he had under the contract, and then set up the fault of-the plaintiff, which was due to his request, as a defense to this contract.”
It requires neither argument nor citation of authorities to show that there was no error in thus submitting the case to the jury, or in applying the principle of estoppel to the facts impliedly found by them.
*408There was no error in the court’s answer to defendant’s points for charge recited in the first eight'specifications respectively; nor is there anything in either of said specifications that requires special notice. As abstract legal propositions, some of the points are correct, but they are inapplicable to the controlling facts of the case.
Defendant’s objection to the question referred to in the ninth specification was rightly overruled. His ’ offer recited in the next and last specificati on was not improperly excluded. Neither of these specifications requires further notice. The case was carefully and correctly tried, and the defendant has no just reason to complain of the result. We are all of opinion that the judgment should not be disturbed.
Judgment affirmed.