In my opinion the judgment in this case should not be reversed for the reasons stated in the majority opinion. The ground of reversal is based upon the failure of respondent to affirmatively allege in his answer waiver or estoppel. Generally speaking when waiver or estoppel are relied upon as a defense they should be specially pleaded. There are however exceptions to this general rule. In the case at bar the appellant in seeking to establish forfeiture under the terms of the conditional sales contract introduced evidence showing that the specific terms or provisions of the conditional sales contract had not been complied with by respondent. On the other hand respondent introduced evidence showing waiver of the specific terms of the conditional sales contract by appellant's assignor. Under the pleadings there were two grounds of forfeiture relied upon. First; that respondent had removed the car in question from the state of California without the permission, knowledge or consent of the Pelton Motor Company, appellant's assignor, or appellant, and second; that appellant as assignee of the Pelton Motor Company was entitled to repossess the car by reason of the failure of respondent to make payments according to the terms of the conditional sales contract. The evidence upon these two questions, and which by the way are the only two serious questions involved, was fully submitted to the court and by the court in its instructions to the jury. The court directly instructed the jury upon both of these questions and the jury passed upon them. The entire record is here for review. No useful purpose could be served by remanding the case for a new trial. To do so would merely result in respondent setting tip affirmatively waiver or estoppel; *Page 313 the same evidence would of necessity be resubmitted and this court would be in no better position upon a retrial and appeal than it now is to dispose of this case.
In Pease v. Teller Corp., Ltd., 22 Idaho 807, 128 P. 981, this court, speaking through the late Chief Justice Stewart, laid down the following rule which to my mind is applicable:
"Where the entire facts are presented to the court in an action to enforce the specific performance of a contract, the rights of the parties to the contract should not be adjudged upon technical or narrow questions or considerations so as to do injustice to the parties to the contract, but the court should give full consideration to all the facts and the intention and action of the parties, and give such judgment as will be just and equitable to the parties thereto."
In Loftis v. Pacific Mut. Life Ins. Co., 38 Utah, 532,114 P. 134, at 141, it is said in the syllabus and borne out in the opinion, that:
"Where a party was not prevented from meeting the evidence of waiver at the trial to the same extent as though waiver had been pleaded, the error, if any, in admitting evidence of waiver because not pleaded, was not prejudicial, and under the statute the court could not reverse the judgment on that ground."
Upon reading the record it cannot be logically contended that appellant was prevented from meeting the evidence of waiver or estoppel (conceding, but not deciding, that under the pleadings either the question of waiver or estoppel is involved) at the trial to the same extent as though waiver had been in fact pleaded. A careful examination of the record discloses the fact that appellant was not affected in any substantial right by reason of the admission of the evidence of waiver, although it be conceded that it was not admissible under the general denial. In fact appellant made no objection to the admission in evidence of the various checks showing the time, manner and mode of payments to appellant's assignor on the conditional sales contract. Under such circumstances, the error, if one was committed in admitting the evidence, was technical rather than substantial and thus was *Page 314 not an error which, under I. C. A., sec. 5-907, would warrant a reversal. Said section provides:
"The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect."
In the course of the opinion in Hartley v. Bohrer, 52 Idaho 72,11 P.2d 616, Justice Leeper uses the following language:
"Under the requirement of C. S. sec. 6728, (Now I. C. A. sec.5-907) and the settled practice of this court a judgment will not be reversed for errors and defects in the pleadings which do not affect the substantial rights of the party complaining. (Dangel v. Levy, 1 Idaho 722; White v. Johnson, 10 Idaho 438,79 P. 455; Schultz v. Rose Lake Lumber Co., 27 Idaho 528,149 P. 726; Joyce Brothers v. Stanfield, 33 Idaho 68,189 P. 1104; W. T. Rawleigh Co. v. Van Duyn, 32 Idaho 767,188 P. 945; Applebaum v. Stanton, 47 Idaho 395, 276 P. 47;Smith v. Peterson, 31 Idaho 34, 169 P. 290; Strong v. OregonShort Line R. R. Co., 31 Idaho 48, 169 P. 179; Bumpas v.Moore, 31 Idaho 668, 175 P. 339.)"
Under the issues raised by the pleadings evidence of waiver was admissible although not affirmatively pleaded. Respondent's answer denied the nonperformance of the contract as alleged in appellant's complaint, and furthermore in respondent's cross-complaint he affirmatively alleged full performance of the conditions of the conditional sales contract. Appellant in its answer to respondent's cross-complaint denied the full performance of the conditional sales contract. In such circumstances where a pleading contains an allegation of the performance of a condition it is not absolutely necessary to allege a waiver because proof thereof is admissible under the general allegations. (Stephens v. Union Assur. Soc.,16 Utah, 22, 50 P. 626, 67 Am. St. 595.)