Sued by the plaintiff company on his subscription to 50 shares of its capital stock, the defendant seeks to escape liability by pleading an alleged fatal variance between the charter of the company and the terms of his subscription; the charter requiring subscriptions of stock to be “paid in cash,” and the terms of his subscription being “25 per cent, per month until full payment”

*281The district court and also the Court of Appeal (the case is here on writ of review) were of the opinion that hy payment “in cash” the charter means no more than that payment shall not be in anything hut money, and that, moreover, defendant is estopped from contesting the subscription; he having made it after he had acted as one of the directors of the plaintiff company, and in order to qualify as such.

We prefer to rest our decision on the es-toppel. 10 Cyc. 531, 536; 26 A. & E. E. of L. 847; Wormser v. Metropolitan St. R. Co., 184 N. Y. 83, 76 N. E. 1036, 112 Am. St. Rep. 596; 6 A. & E. Annotated Cases, 123, 126.

Judgment affirmed, at relator’s cost.

On Rehearing.

Defendant calls attention to the fact that the estoppel upon which the court based its opinion was not pleaded. It did not need to be, since the answer of a defendant is open to every objection of law or fact as if specially pleaded, replication not being allowed under our law. Hen. Dig. 1155, No. 1.

Rehearing refused.