Page:Federal Reporter, 1st Series, Volume 4.djvu/595

 COOS BaT WAaOK 00. V. C&OOEBB. 5S1 �1876, tb be performed by Miller; and upon the hearîng evi- dence was given tending to prove that the defendant, at and immediately before the eonveyaface and assignment to him; by Miller, and in consideration tberepf, expressly utidertoxik and promised to do so. But, in my judgment, it is net sufficient to establish that fact. But the evidence satisfab- torily proves that the defendant, either in person, or by bis agents and attomeys, at and before Such conveyance and assignment, had full notice- df the contràct of May 31, 1875, between Miller and the plaintiff, and the respective obliga- tions and liabilities of the parties thereto. �Having concluded that, as a matter of fact, the defendant did not undertake to perform Miller 's contràct with the plain- tiff, it is unnecessary to consider whether such an undertak- ing isrequired by the statute of frauds tobe in writing, as set up in the defendant'^, ans-wer. But the plaintiff claims that the defendant is estopped to deny that he did so undertake and promise, on account of his letter of April 5, 1876, to the plaintiff, by which it appears he assumed to be the assignee of Miller as to this land grant, -whether patented or unpat- ented, and particularly the latter. But there are no elements of an estoppel in this transaction. The plaintiff was neither deceived nor injured by what the defendant said or did in this respect ; nor was it thereby or otherwisô induced to take any action upon or change its relation to the subject-matter, and without these circumstances there can be no estoppel. Wythe V. Smith, à Saw. 24; Wythe v. Salem, Id. 88. But the trans- action, of which this letter is the principal item, is very satis- factory proof that the defendant had become the assignee of Miller, and accepted his assignment of the contràct with the plaintiff for the sale and purchase of this land grant. His declarations in this connection are utterly inconsistent with any othertheory than that he so regarded himself; and cer- tainly his conduct amounts to a direct assertion to that effect. In this letter to the plaintiff the defendant assumes to be entitled to the oontrol of the land — patented and unpatented — and directs the terms of settlement to be made with the occupants upou the unpatented portion — not exceeding 1,000 ����