(dissenting). I respectfully dissent because I would dismiss the complaint on the ground that Hanz is estopped to assert its claim for truck rent as against Crestline. As stated in the majority opinion, estoppel in pais was defined recently by the court as set *270forth in City of Milwaukee v. Milwaukee County 1 as follows:
“An estoppel in pais consists of action or nonaction on the part of the one against whom the estoppel is asserted which induces reliance thereon by another, either in the form of action or nonaction, to his detriment.”
In essence, I believe that Hanz is estopped here because of its “action or nonaction” in sending Crestline bills from 1959 through May, 1964, for actual monthly mileage rather than minimum monthly mileage, which induced “reliance” thereon by Crestline to its “detriment,” shown by payment of each bill as submitted and by continual renewal of the contract and by Crestline’s failure to terminate, as it would have done if rentals were based on minimum monthly amounts. The first bill sent by Hanz on the basis of minimum monthly mileage was sent to Crestline after Hanz received a notice of termination of the lease on April 22,1964.
Although there is no specific finding of fact by the trial court on the question of estoppel, in its memorandum decision the court states that, in view of the fact that as the years passed under the contract “the parties saw fit to reduce the number of miles required per month from 7,200 all the way down to 4,500 . . . these men could not have understood this to mean that they were not being held responsible for these miles on a monthly basis, since it would have been just as easy to incorporate a yearly average figure and change the contract in that respect if it had not been meant to say just what was said in the contract and to perform it in the manner in which it so states.” Thus, the court engaged in speculation about what the parties might have done, whereas the actual record of what was done actually supports only one conclusion, that there was an estoppel of Hanz.
*271Until the termination of the agreement, Hanz never submitted a monthly bill based on the monthly minimum that it claimed was due. Instead, with each month there was a bill sent by Hanz to Crestline for the actual miles used in that month. It may have been that there were only a few months when the billing on the actual basis was really less than the contract minimum as viewed by Hanz. Nevertheless the bills actually sent out were inconsistent with the terms of the contract as now contended for by Hanz. For over five years Crestline continued as the truck lessee. It paid each bill as submitted. It terminated the contract on April 22, 1964, and as of June 16, 1964, Crestline received its first bill computed on the basis of guaranteed monthly requirements rather than on the basis previously billed. This whole course of conduct on the part of Crestline constitutes sufficient reliance on Hanz’s conduct, which redounded to the detriment of Crestline to such extent that it could validly assert estop-pel as against Hanz in this present attempt to collect rentals on the basis of a contract construction that was never reflected in its billings to Crestline.
I would hold, as a matter of law, that Hanz was estopped from asserting its claim and necessarily this would mean that the judgment below should be reversed and the plaintiff’s complaint dismissed.
I am authorized to state that Mr. Chief Justice Currie and Mr. Justice Fairchild join in this dissent.
(1965), 27 Wis. (2d) 53, 66, 133 N. W. (2d) 393.