On Motion for Rehearing.
[12] It is asserted that we were in error in finding that Lesh personally told Priddy that the sale to him by the Godley Oil & Gas Company had not been consummated. We did not intend so to state, but this information was imparted by Moore before the contract was signed by Priddy, and, as we regarded Moore as the agent of Lesh, we thought that it was immaterial which one told Priddy. At any rate, Priddy learned that Lesh was not the unconditional owner of the land before executing the contract.
[13] It is also' asserted that we were in error in stating that Armstrong was the agent of Lesh. Perhaps the record required a finding that his relationship was that of a go-between. Priddy inquired of Armstrong for. land near the well. Armstrong called on Moore, inquiring of him if he had land. Moore visited Lesh and obtained permission to sell the land, and it appears agreed upon a division of the commission if the sale was effected to Priddy. Armstrong took both Lesh and Moore to Priddy, and after the trade returned with Lesh to Moore, and it is inferable that Lesh recognized that he owed the commissions on the deal. Whether he knew Armstrong and Moore were acting together in the matter we think unnecessary to determine. Moore had the right as agent to sell, and Armstrong found the purchaser, and all appear to have known he was acting as a broker in the matter. All these facts as to the exact relationship we regarded as immaterial, further than to show they were acting together in getting the contract signed and the money thereon.
. [14] In the original opinion we stated Prid-dy knew Lesh was the “contract owner” of the lease to Lesh, and that under the authorities and the facts Priddy acquired no interest under a writing from Lesh. It is possible such conclusion may not be entirely accurate. The contract had not been delivered to Lesh up to the time of this trade with Priddy, but it, together with Lesh’s money, was in escrow in the hank, to be delivered and an assignment executed upon the happening of certain conditions. The conditions had not yet happened, so as to vest title or interest in the land, either legal or equitable. It was un-executed, and could not be executed until the conditions were performed, as stipulated. In other words, up to that date no estate was created in the land in favor of Lesh. In this particular this case is distinguishable from the case of Sanborn v. Murphy. Under that case an estate or interest was created by performance of the conditions, and it appears that the bond had been delivered to the obligee. It would seem the facts in this case bring it more nearly under the rule announced in Bullion v. Campbell, 27 Tex. 653. It was held in that case an oral assignment of a bond for title was not within the statute, as the assignment was not the contract sought to be enforced. See, also, Anderson v. Powers, 59 Tex. 213. It has been held, where a contract has been deposited in escrow upon conditions, that the title does not vest until the performance of the conditions. Scott v. Childers, 24 Tex. Civ. App. 349, 60 S. W. 775. The fact that under the contract appellees would have a right within the time specified to perform the condition and thereby create an estate in land, does not, before performance, create such an interest as would require, under our statutes, a writing to assign the contract. As finally consummated, the agreement of all parties was to substitute appellant for Lesh in the contract.
[15] In a sense the oil company was a trustee, holding the legal and equitable title for the beneficiary thereunder. It seems that such a trustee may, at the request or solicitation of the beneficiary, convey the title to whom he may direct, and if he does so the beneficiary would be estopped to afterwards assert title. This has been said frequently in a negative way. Brown v. Harris, 7 Tex. Civ. App. 664, 27 S. W. 45. It is well recognized in this state that the vendor, in an ex-ecutory contract, may, in default of the payment of the purchase money, convey the *253title. He holds the title in trust for the payment of the debt. So we think a party may waive his right to pay the money and complete the transaction. Where he has done so, we see no reason why estoppel by waiver may not be applied. It is permissible for a party with a legal right to waive it, and when his conduct has induced another to rely upon such waiver he should be estopped. Building & Loan Ass’n v. Stewart, 94 Tex. 447, 61 S. W. 386, 86 Am. St. Rep. 864. Some of the cases cited in the original opinion are to the effect that the conveyance by the vendor passes the title, where the vendee refuses .to comply with the conditions or waives the right to do so; the courts holding, where,his acts or conduct influences another to /purchase, the vendee is estopped from afterwards asserting title.
“If one, by acts or words, intentionally makes another believe that he has no right or interest in property, with which the other is dealing, or has abandoned his right, and the party acts on the state of things so presented, and is thereby misled, then the party inducing such action cannot claim his interest or right in the property.” Simkins, Equity, 671.
[16] It is insisted that Priddy knew that Lesh had a contract, and therefore was not induced by false representations to change his position; but in this appellees overlook an important factor, in creating estoppel, which influenced Priddy to believe Lesh had “abandoned his right” under his contract. 1-Iis agent, Moore, who was also the president of the company informed Priddy that he and Lesh had agreed that Priddy could be substituted for Lesh in the contract. We believe this was calculated to lead Priddy to believe that Lesh had or would abandon his right under his contract, and especially so when he had presented to him a contract executed by the company. Lesh’s agent accepted Priddy’s money on that contract, and bound him by it to pay $30,000 more. Under such circumstances, we do not think Priddy was called upon to ascertain if all the necessary formalities had been performed. If they had not abandoned the former contract, they perpetrated a fraud on Priddy. They cannot be heard to say, if Priddy had been diligent, he would have learned that what they said was not true. It does not comport with right and fair dealing for one, who by his misstatements leads another to rely upon his words and agreement, to assert that the party so misled ought to have known what was said was in fact false,' and that it was not the purpose to carry out their representations. The following cases bear on this question: Morris v. Gaines, 82 Tex. 255, 17 S. W. 538; Fielding v. Du Bose, 63 Tex. 631.
[17] Contracts within the statute of frauds are not void or illegal, the enforcement of which is only suspended until the provisions of the statute are satisfied. Browne on Statute of Frauds, § 115a; Robb v. Railway, 82 Tex. 392, 18 S. W. 707; Binghurst v. Texas Co., 39 Tex. Civ. App. 500, 87 S. W. 893; Edwards v. Old Settlers, 166 S. W. 423. In this case, under appellant’s theory, it was agreed to substitute him in the contract with the oil company. This was done, and the company, through its president, executed to him its assignment of the lease. The statute of frauds do not apply where the oral contract is executed. Central Land Co. v. Weems, 73 Tex. 252, 11 S. W. 270. In this case the contract was made, and was executed as provided by the statute of frauds, by the company authorized to execute it. Possibly the question is not the statute of frauds, if appellant shall establish a ease as claimed by him. The question may be: Which assignment conveys the title, that held by Lesh or Priddy?
[18,19] There is another reason we would suggest, and that is Priddy is not relying on the oral contract with Lesh, but on his contract in writing, executed under the circumstances detailed in his evidence. In other words, he is not trying to specifically enforce an oral contract. The appellees assail his written assignment, and seek to show that, although an oral contract was made to sell Lesh’s right, yet it was not in writing. The appellant replies by showing that the contract and assignment upon which he relies was induced and accepted as a satisfaction of the oral contract, at the direction of the appellee Lesh. He ought, we think, to be permitted to defend his legal title by showing that appellees are without equity. If Lesh induced or influenced the making of the contract as it was made, we think the appellant was entitled to show it; and if appellant was induced to believe Moore, as president, was authorized to make the contract and bind his company, Lesh would be estopped from asserting otherwise, even though there was no authority given Moore'by the directors of his company. The principles of estoppel heretofore discussed would control such condition.
[20, 21] We think the payment of the money and executing the contract shows such a change in Priddy’s condition as would inflict an injury on him, which would permit him to avail himself of estoppel. The mere fact that after making the contract Lesh tried to rescind did not affect Priddy’s right. He had entered into a contract, paid his money, and had the right to stand on the contract as consummated. It was argued before us that the check marked “Good,” signed by the cashier, was not a certification. “A check may be certified by a bank by writing upon it the word ‘Good,” or any other similar words, which indicate a statement by it that the drawer has funds in the bank applicable to the payment of the same, and that it will so apply them.” Banks and Banking, Michie, “Deposit,” § 145, vol. 2, p. 1171, and note, citing Bank v. Whitman, 94 U. S. 343, 24 L. Ed. 229. The object of the certification is to use the check *254as money. Section 145, Id. So the check certified placed $20,000 in the hands of Lesh’s' agent, as much so as if it had been money. The facts of this case raise the issue of injury to Priddy. It will be unnecessary, as we conceive it, to discuss the benefits to Lesh and the effect of the subsequent transaction by the oil company.
We believe the motion should be overruled.