dissenting.
I concur with Judge Donnelly in his dissent, agreeing that USF&G had notice of Passer’s lien.
I respectfully add that this case was tried, by all parties, on the theory that both USF&G and Mr. Shirkey had, by their conduct, treated Passer as having a valid and subsisting lien. The whole object of what USF&G and Shirkey did was to avoid having to include Passer in the settlement despite his lien. There is no evidence, as far as I can determine, to support the proposition that either USF&G or Shirkey ever questioned Passer’s lien on the ground that Passer’s lien letter failed to state what his percentage was. In fact, as the principal opinion notes, USF&G’s attorney expressly acknowledged the existence of the lien in his letter of September 3, 1970 to Shirkey. The trial judge, in pre-trial rulings in chambers prior to impaneling the jury, characterized the claim that the lien letter was not sufficient as an “afterthought.”
The trial judge stated as follows:
“I think this also tells the parties, as these documents will show, was such that everybody assumed that he did have a lien. In much of the dealings between the plaintiff and the insurance company, between the plaintiff and defendant Shir-key, and between Shirkey and the insurance company, nobody ever questioned whether or not he had a valid lien. This apparently, that the letter wasn’t sufficient, is an afterthought. I think certainly with all the dealings that there were among the three entities here involved, the plaintiff and two defendants, that it would be grossly unfair at this stage to say, ‘Well, we decided that your letter wasn’t sufficient.’
“I feel quite sure that the plaintiff would be protected against such a conclusion or such a result by some equitable principle, such as estoppel or laches.
*649[T]he refusal to honor the plaintiff’s lien had nothing to do, even in the final analysis — had nothing to do with whether he stipulated the percentage. . . . The insurance company did it because they could save four thousand dollars on the judgment, and because they got Mr. Shir-key’s indemnity. . . . They were aware — the documents show that they were aware, that they hesitated to go ahead with it, and when Shirkey said, T will indemnify you,’ they said, ‘That is okay. That solves our problem.’ . They didn’t refuse to honor it because of the insufficiency of the notice. “. . . They didn’t care what the percentage was. They simply weren’t going to acknowledge it, and, so, they are not in position to claim that they didn’t have adequate notice.”
There was no objection to the court’s ruling by counsel for USF&G. The only objection made by counsel for defendant Shirkey was not on the ground that Passer had failed to file a reply pleading waiver or estoppel. The objection was that the court’s remarks assumed that Passer had a valid contract, which counsel said was “highly disputed.”
It seems to me, therefore, that Passer is entitled to assert in this court that the defendants are estopped from asserting or have waived any claim that the lien letter was insufficient on the ground now contended. Certainly defendants, under the record before us, were in no way mislead or prejudiced by Passer’s failure to plead waiver and estoppel in a reply. I would apply rule 55.33(b), which provides: “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” In fact, rule 55.33(b) provides further that amendments of the pleadings to conform to the evidence in such instances may be made at any time, even after judgment, but even if not done, such failure shall not affect the result of the trial of such issues.
I would affirm the judgment on Count I, and then would deal with Count III on the merits.