"In Nance v. Oklahoma Fire Ins. Co., 31 Okla. 208, 120 P. 948, 38 L. R. A. (N. S.) 426, Mr. Justice Hayes says: 'He [plaintiff] introduced, over objection of defendant, evidence for the purpose of showing that this requirement of the policy had been waived. Evidence for such purpose was clearly incompetent, for it has often been held by this court that the doctrine of estoppel or waiver, in order to be availed of, the facts constituting the same must be pleased.' See Bleakmore v. Johnson, 24 Okla. 544, 103 P. 554; Cooper v. Flesner, 24 Okla. 47, 103 P. 1016 [23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29]; Tonkawa Milling Company v. Town of Tonkawa, 15 Okla. 672 [ 83 P. 915]; A., T. S. F. Ry. Co. v. Lynn, 54 Okla. 701, 154 P. 657."

This did not take into account that by the letter with regard to the $475 payment, a definite agreement had been made relative thereto, deferring the crediting of part thereof. Since respondents' complaint did not challenge the foreclosure proceedings, appellant's objections to the evidence bearing upon the method, manner, regularity and irregularity of the foreclosure proceedings should have been sustained and the admission of such evidence was prejudicially erroneous for several reasons: it was not justified by the pleading of respondents; Chicago, R.I. P. Ry. Co. v. Mailes, 52 Okl. 278, 152 P. 1131; Atchison, T. S.F. Ry. Co. v. Lynn Hudson, 54 Okl. 701, 154 P. 657; Comanche Mercantile Co. v. Wheeler Motter M. Co. 55 Okl. 328, 155 P. 583; Pierce v. Barks, 60 Okl. 97, 159 P. 323; Reid v. Runyan, 100 Okl. 134, 226 P. 873; Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731; appellant's further answer did not allege the proceedings, as such, were regular — merely that the chattel mortgage was foreclosed in accordance with the provisions thereof. The error was emphasized and the jury further confused by the giving of Instructions 6, 11, 12, 13, 14, and 15; Chicago, R.I. P. Ry. Co. v. Spears, 31 Okl. 469, 122 P. 228 at page 230; Chambers v. Van Wagner, 32 Okl. 774, 123 P. 1117 at page 1118; Warden v. Kerns, 108 Okl. 115, 233 P. 1048, which purported to tell the jury how they should consider and pass upon the regularity of the foreclosure proceedings and which were totally inconsistent with Instruction No. 27, which was: "* * * that the issue framed by the pleadings in this case is only whether there was or was not a conversion by Commercial Credit Co

Grabau v. Pudwill, 45 N.D. 423, 178 N.W. 124; Rook v. Schultz, 100 Or. 482, 198 P. 234; Moore v. Hart, 171 Ky. 725, 188 S.W. 861; Donoghue v. Holyoke St. R. Co., 246 Mass. 485, 141 N.E. 278. The oral charge must be considered as a whole; and, if so construed, it properly declares the law, the trial court will not be put in error because a segregated part, considered separately, is unsound or fails to state all the necessary requirements of liability. Southern Ry. v. Weatherlow, 164 Ala. 151, 51 So. 381; Birmingham S. R. Co. v. Craig, 1 Ala. App. 329, 55 So. 950; Southern Ry. v. Lynn, 128 Ala. 297, 29 So. 573; Birmingham R. Co. v. Murphy, 2 Ala. App. 588, 56 So. 817; Montgomery E. R. Co. v. Stewart, 91 Ala. 421, 8 So. 708; Alabama G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65; McNeill v. State, 102 Ala. 121, 15 So. 352, 48 Am. St. Rep. 17. The driver of an automobile cannot give his opinion or conclusion that the car was under control. St. Louis-S. F. v. Savage, 163 Ala. 55, 50 So. 113; Birmingham R. L. P. v. Martin, 148 Ala. 8, 42 So. 618; Louisville N. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392.

ers were undisputed. There was dispute as to whether deceased had, subsequent to his suspension, paid his dues, but there was no dispute that he had not furnished the certificate as to health, etc. Plaintiff offered evidence tending to establish a waiver of this requirement by the local officers, acquiesced in by the Sovereign Camp. This was excluded, and a verdict for defendant directed. From the judgment rendered pursuant to such verdict, plaintiff appeals. It does not seem to be necessary to pass upon the power of the officers to waive the delivery of the health certificate, inasmuch as plaintiff pleaded no waiver. It has been so often decided by this court that it should now be familiar law that a waiver must be pleaded by the party relying thereon, and, if not so pleaded, evidence to establish it is inadmissible. A few of such decisions by this court are: Hartford Fire Ins. Co. v. Mathis, 57 Okla. 332, 157 P. 134; Fidelity Mut. Life Ins. Co. v. Dean, 57 Okla. 84, 156 P. 304; A., T. S. F. R. Co. v. Lynn, 54 Okla. 701, 154 P. 658; Modern Woodmen v. Weekly, 42 Okla. 25, 139 P. 1138; Nance v. Okla. Fire Ins. Co., 31 Okla. 208, 120 P. 984, 38 L. R. A. (N. S.) 426; Blakemore v. Johnson, 24 Okla. 544, 103 P. 554; Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Am. Cas. 29; Tonkawa Milling Co. v. Tonkawa, 15 Okla. 672, 83 P. 915. Under these decisions the trial court was correct in excluding the evidence of waiver and without it, there being no dispute as to a breach of the terms of the certificate, he was also correct in directing a verdict.

Evidence for such purpose was clearly incompetent, for it has often been held by this court that the doctrine of estoppel or waiver, in order to be availed of, the facts constituting the same must be pleaded." Bleakmore v. Johnson, 24 Okla. 544, 103 P. 554; Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29; Tonkawa Milling Company v. Town of Tonkawa, 15 Okla. 672, 83 P. 915; A., T. S. F. Ry. Co. v. Lynn Hudson, 54 Okla. 701, 154 P. 657. Had an estoppel been properly pleaded by the defendant, the admission of said evidence as to the contract in regard to the payment of freight by the piano company, and consequently the instructions given thereon, would have been free from error.

" See Blakemore v. Johnson, 24 Okla. 544, 103 P. 554; Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29; Tonkawa Milling Co. v. Town of Tonkawa, 15 Okla. 672, 83 P. 915; Atchison, Topeka Santa Fe Ry. Co. v. Lynn Hudson, 54 Okla. 701, 154 P. 657. As the view herein expressed must necessarily work a reversal of this cause, we deem it unnecessary to review the other errors assigned.