We fully agree with counsel for appellant in their proposition that the court was not warranted by the evidence in charging upon appellee's plea of estoppel because the testimony failed to show the presence of several essential elements of an estoppel in pais, and this, though not definitely expressed in the opinion, was our conclusion *Page 344 when it was written. We thought, however, and still think, that, in view of the remittitur, this error was not prejudicial. The defect in the elevator did not arise from appellee's failure to comply with his written contract, but from a non-compliance with the oral contract to furnish piping and pressure to operate the elevator — which contract we still think under the pleadings and evidence cannot be considered a part of the one in writing. As the remittitur covered everything claimed by reason of a breach of the oral contract, and as there was no evidence to show a failure on the part of appellee to comply with the written agreement, the charge upon estoppel could have only influenced the jury on the matters pertaining to the oral contract, and, as such matters were wholly eliminated by the remittitur, the error in giving the charge could not have been carried into the judgment appealed from.
The motion is overruled. Overruled.