Allstate Insurance Co. v. Pough , 1977 Fla. App. LEXIS 16166 ( 1977 )

PER CURIAM.

Several points have been presented on this appeal, one questioning the jurisdiction of this court. We find that we do have jurisdiction. We also find that the learned trial judge was the manifestation of patience itself as the case was tried on theories and issues not raised by the pleadings. He did, however, err when he instructed the jury on the affirmative defense of estoppel which had neither been raised by the pleadings nor by the evidence adduced during the trial. No useful purpose will be served by a recitation of the facts nor will a discussion of the several points urged on the appeal affect the jurisprudence of the state of Florida. Inasmuch as we have determined that we must reverse because of the erroneous instruction on the defense of estoppel we anticipate, based upon comments of counsel during oral argument before this court, that were the parties permitted to replead (which we hereby suggest) prior to a new trial the matters giving rise to the remaining points on appeal should not reasonably be expected to reoccur. We accordingly reverse and remand for a new trial after the parties have been afforded an opportunity, should they so elect, to re-plead.

The motion of appellee Pough for attorney’s fees incident to this appeal is denied.

BOYER, C. J., and McCORD and MILLS, JJ., concur.