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OPINION OF THE COURT.

EDWIN MECHEM, District Judge

(after stating the facts as above). Appellant made numerous assignments of error, but has only argued two propositions : First, that the modification of the contract was within the statute of frauds, and, being oral, was void; second, admitting that the modification did not come within the statute of frauds, there was no evidence on which the court could have given the appellee more than nominal damages.

[1, 2] As to the first proposition, we do not deem it necessary to go into the question as to whether or not the oral modification, as agreed to by the parties, was within the statute, of frauds for the court found that the appellee relied on the same, and held ‘his cattle in order to be able to carry out the contract, and suffered loss, and for this reason the appellant was estopped from pleading the statute of frauds as a bar. The evidence sustains the finding, and the trial court was correct in his conclusion of law.

The appellant admits that the appellee notified him, within a day or two after the signing of the contract, of the condition of the title to the Cart-right tract. He also admits that he did not notify appellee that he would not go ahead with the contract until May 17, 1918. It was the appellant’s duty, if he intended to insist on a strict compliance with tne contract, to have so told the appellee. He could not agree with the appellee that the contract should be modified, and after the appellee had relied on such agreement, to his damage, then take refuge behind the statute of frauds. In Kingston v. Walters, 16 N. M. 59, 118 Pac. 594, this court said:

“Where a representation as to the future relates to an intended abandonment of an existing right, and is made to influence others, and they have been influenced by it to act, it operates as an estoppel.”

The evidence in this case shows that the appellee had opportunities to sell the cattle in question during the 30 days; that he refused to sell the same, because he was relying on appellant’s agreement to carry out the contract as modified.

As to the question of damages raised by appellant, we have read the evidence, and it is sufficient to sustain the judgment.

For the reasons stated, the judgment is affirmed; and it is so ordered.

ROBERTS, C. J., and RAYNOLDS, J., concur.

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