(concurring). — In the opinion of Judge Thompson and myself, the question whether the ' proof shows a valid sale within the provisions of the *63statute of frauds is immaterial. The plaintiff, by instituting this suit to recover part of the purchase money of the lands in the hands of his agents, is estopped from asserting that the agents failed to make a valid sale. The plaintiff cannot take the inconsistent position of treating the sale as both valid and invalid, valid for the purpose of entitling him to recover part of the purchase-money, and yet invalid for the purpose of entitling his agents to commissions.