Dissenting.- — It is demonstrated in the opinion of Mr. Justice Me Court that the question of estoppel legitimately did not arise in the pleadings or in the testimony in this case. If the plaintiff intended to rely, not upon the fact as charged in the complaint, that the defendant Susie Allen actually signed the notes in question, but that she was es-topped to deny her signature to the injury of the plaintiff, it should have so stated it in the initial pleading, under authority of Mercer v. Germania Ins. co., 88 Or. 410 (171 Pac. 412). The principle underlying such doctrine is, that the plaintiff must declare his whole case in his complaint and cannot state part of it in that pleading and the remainder in the reply.
As excusing the court for alluding to the estoppel in the charge to the jury, it is said that “plaintiff was permitted to proceed as though an estoppel had been pleaded in the complaint, contrary to the rule above quoted.” The only feature of the testimony giving color to this statement is that where the plaintiff introduced letters written by the plaintiff to the defendant in which it may be inferred they asserted the *197genuineness of her signature and that on the receipt of those letters she .had not denied it. This does not amount to a treatment of the case as if estoppel had been pleaded; for under the general issue it was competent to offer the declaration of the bank in those letters made within the observation of the defendant and to give testimony of her conduct in relation thereto: Section 727, Or. L. This statutory rule would obviate any objection of the defendant to that line of testimony, and hence it would not be treating the case as if an estoppel had been pleaded.
The doctrine of estoppel, therefore, was purely academic as applied in the charge, and the giving of the instruction on that subject was a pure abstraction which a long list of precedents in this state declares to be erroneous, requiring a reversal of the judgment : Morris v. Perkins, 6 Or. 350; Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Bailey v. Davis, 19 Or. 217 (23 Pac. 881); Bowen v. Clarke, 22 Or. 566 (30 Pac. 430, 29 Am. St. Rep. 625); Pearson v. Dryden, 28 Or. 350 (43 Pac. 166); Geldard v. Marshall, 47 Or. 271 (83 Pac. 867, 84 Pac. 803); Olsen v. Silverton Lumber Co., 67 Or. 167 (135 Pac. 752); Sanders v. Taber, 79 Or. 522 (155 Pac. 1194); Askay v. Maloney, 85 Or. 333 (166 Pac. 29).
For these reasons I dissent from the conclusion reached by Mr. Justice Me Court. The judgment ought to be reversed.