An opinion was filed on this appeal on July 6, 1909, and judgment given thereon as follows: “The judgment and order appealed from are reversed.” The following is a copy of said opinion, the same having been written by Justice Sloss:

It will be observed that the court did not in this opinion pass upon the question whether, assuming that Mr. Oelrichs had the power to bind the appellants by a written contract for ten years, the appellants would, upon the facts disclosed by the record, be estopped to assert the invalidity of the oral contract made by said Oelrichs and Charles L. Fair with plaintiff, and also failed to pass upon the question of the measure of damages. Upon petition for rehearing it was concluded by the court that the question of estoppel should be determined for the purposes of a new trial, and solely for that reason an order vacating the decision was made.

We adhere to the views expressed in the former opinion as to the questions determined therein, and as to such questions adopt the same as the opinion of the court. For the reasons stated therein, the judgment and order denying a new trial must be reversed, but for the purposes of a new trial that must follow, we will determine the question of estoppel.

In our discussion we shall assume, of course, that Mr. Oelriehs was duly authorized in writing to enter into such a contract on behalf of the defendants as is alleged to have been made by him with plaintiff. If he was so authorized, it is apparent that defendants are bound by his acts, conduct, and statements to the same extent that they would have been had they been personally present and personally had done just what he did. So assuming, the facts that plaintiff’s evidence tended to show are substantially as follows: Plaintiff was captain of detectives in the police department of the city and county of San Francisco, at a salary of two hundred and fifty dollars per month. Under the law, he held practically a life position as captain of police, being removable therefrom only for good cause after trial. All this was known to the defendants and to Charles L. Fair, to whose property they have succeeded. Under these circumstances they offered him a position, wherein he was to render personal services in connection with their property in San Francisco for a compensation in money. The terms of the contract were finally agreed upon before Mr. Fair left for Europe, Mr. Fair acting for himself and Mr. Oelriehs representing the defendants. Plaintiff told them that he then had a life position, with a right to a pension if he remained long enough in the police department, and that he could not afford to leave the place and go-into anything else unless he was certain of steady employment, and they then told him that they would give him a ten-year contract at three hundred dollars per month. This was assented to by plaintiff. The day before Mr. Fair left for Europe, to be absent a few weeks, being very busy in closing up certain business affairs that had to be attended to before he left, he told plaintiff: “Now, in regard to this contract, you leave that stand until I get back, and I will give you the contract.” Plaintiff asked him why it could not be done “now,” and Fair told him not to be afraid, it would be all right, everything would be all right. It was understood that he was to go to work at once. On leaving Mr. Fair, plaintiff met Mr. Oelriehs and told him about his conversation with Fair, and Oelriehs said: “As far as I am concerned I will give you my part of it now if you want it. I represent Mrs. Oelrichs and Mrs. Vanderbilt and there will be no trouble about it at all, but you might just as well leave it go until Pair returns,” and plaintiff said “All right.” This was about June 1, 1902. Plaintiff relied absolutely upon the understanding that he was to have a written contract for ten years at three hundred dollars a month, and would not otherwise have resigned his position in the police department or entered the employ of the defendants and Pair. The morning Pair went away, he asked plaintiff when he was going to resign, and plaintiff said “To-day,” and Fair said, “All right, you go ahead, it will be all right, everything will be all right on my return.” He did resign at once and his new employment commenced June 1, 1902. Pair was killed near Paris, Prance, August 14, 1902, without having returned to America. Plaintiff continued to perform all services agreed to be rendered and received three hundred dollars a month therefor to July 1, 1904, when defendants, having determined to sell all their San Francisco property, discharged all of their employees, including plaintiff, and have ever since refused to recognize him as an employee or pay him any portion of the salary agreed upon. Plaintiff had no intimation that either Mrs. Oelrichs or Mrs. Vanderbilt did not know all about the terms upon which he entered their employ until November, 1903, when an attempt, which was not persisted in, was made to-reduce his salary; Mrs. Oelrichs on November 30, 1903, told him that Mr. Oelrichs had no right to make such an arrangement: There was nothing to indicate that Mrs. Vanderbilt personally had any knowledge that plaintiff was an employee at all until after Pair’s death, or that she personally knew anything about the alleged contract. It is not claimed by plaintiff that either Mr. Oelrichs or Mr. Pair did not act in perfect good faith in this matter, it being conceded that each of them fully intended to execute the written contract.

The claim of plaintiff is not that mere part performance-of a contract for personal services which by its terms is not to be performed within a year, “invalid” under our statute-because not evidenced by writing, renders the same valid and enforceable. Such a claim would, of course, find no support in the authorities. (5 Browne on Statute of Frauds, sec. 448.). He necessarily is compelled to rely solely on the claim that the defendants by their conduct and promises, on which he was entitled to and did rely, having induced him to give up his life position in the police department in order to enter their employ for a term of years at three hundred dollars a month, on the assurance from them that they would give him a written contract for such time and amount, and it being impossible for him to be placed in statu quo, are estopped from now setting up the statute of frauds as a defense to his action on the contract. Under this claim, the fact of part performance by plaintiff plays no part whatever. It was the change of position caused by his resignation from the police department upon which his claim wholly rests, and this resignation was, of course, no part "of the performance of the -contract of service, but was something that must be done by plaintiff before he could begin to perform, as was known to the defendants. Plaintiff’s ease, in this regard, would be just as strong if after his resignation he had been prevented by defendants from beginning to perform.-

The right of courts of equity to hold a person estopped to assert the statute of frauds, where such assertion would amount to practicing a fraud, cannot be disputed. It is based upon the principle “thoroughly established in equity, and applying in every transaction where the statute is invoked, that the statute of frauds, having been enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting, or aiding the party who relies upon it in the perpetration of a fraud or in the consummation of a fraudulent scheme.” (2 Pomeroy’s Equity Jurisprudence, sec. 921.) It was said in Glass v. Hulbert, 102 Mass. 24, 35 , [ 3 Am. Rep. 418 ]: “The fraud most commonly treated as taking an agreement out of the statute of frauds is that which consists in setting up the statute against its enforcement, after the other party has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement, or upon the supposition that it was to be carried into execution, and the assumption of rights thereby to-be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and uncon scientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds.” This statement has been accepted as setting forth a plain and satisfactory ground for equitable jurisdiction, together with a clear indication of the proper limitation of its exercise. (See 5 Browne on Statute of Frauds, sec. 457a.) In the section last cited, Mr. Browne says: “A plaintiff . . . must be able to show clearly . . . not only the terms of the contract, but also such acts and conduct of the defendant as the court would hold to amount to a representation that he proposed to stand by his agreement and not avail himself of the statute to escape its performance; and also that the plaintiff, in reliance on this representation, has proceeded, either in performance or pursuance of his contract, to so far alter his ■position as to incur an unjust and unconseientious injury and loss, in case the defendant is permitted after all to rely upon the statutory defense. After proof of this, the court may well be justified in using its undoubted power, in cases of equitable •estoppel, to refuse to listen to a defendant seeking to deny the truth of his own representations previously made.”

We can see no-good reason for limiting the operation of this equitable doctrine to any particular class of contracts included within the statute of frauds, provided always the essential elements of an estoppel are present, or for saying otherwise than as is intimated by Mr. Pomeroy in the words already quoted, viz.,- that it applies “in every transaction where the statute is invoked.” It is a general equitable principle, a part of the broader equitable doctrine stated in Dickerson v. Colgrove, 100 U. S. 580 , and quoted therefrom in Carpy v. Dowdell, 115 Cal. 687 , [ 47 Pac. 695 ], as follows: “The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both.”

The question then is whether the facts of this case bring it within the principle we have discussed. It is clear that there was such a change of position on the part of plaintiff in his irrevocable surrender of his office in the police department, induced in fact by his reliance on the promise of defendants and Fair that a written contract for ten years at three hundred dollars a month would be given, that he would incur great injury and loss in case the defendants are permitted to rely upon the statute of frauds as a defense. That there would necessarily be such a change of position on his part in the event that he relied upon their promise and accepted their offer was known to them, and the promise was given with this knowledge and with the intent that it should be relied on by him and the change in his position thereby induced. The injury done plaintiff by a repudiation of the promise by defendants under these circumstances would certainly appear to be “unjust and unconscientious.” Is it permissible to them, in view of the well-settled principle stated, to so repudiate it by interposing the fact that the contract has not been reduced to writing, as promised, as a defense to this action?

Learned counsel for defendants say that no fraud on the part of defendants is shown, and that there can be no estoppel in the absence of fraud on the part of the person estopped. The presence of fraud is, of course, essential. It is established by a multitude of cases that to constitute fraud sufficient to serve as a foundation for estoppel by acts or conduct an actual intent to mislead is not essential. Mr. Pomeroy in his work on specific performance says that the fraud essential in such cases is not necessarily an antecedent fraud, consciously intended by a party in making the contract, but a fraud inhering in the consequence of thus setting up the statute. (Sec. 104.) In Anderson v. Hubble, 93 Ind. 570, 576 , [ 47 Am. Rep. 394 ], it was aptly said: “It is not necessary, in order to the existence of an equitable estoppel, that there should exist a design to deceive or defraud. The person against whom the estoppel is asserted must, by his silence or his representation, have created a belief of the existence of a state of facts which it would be unconscionable to deny; but it is not essential that he should have been guilty of positive fraud in his previous conduct. . . . All that is meant in the expression that an estoppel must possess an element of fraud is, that the case must be one in which the circumstances and conduct would render it a fraud for the party to deny what he had previously induced or suffered another to believe and take action upon. . . . There need be no precedent corrupt motive or evil design.” (See, also, 2 Pomeroy’s Equity Jurisprudence, sec. 805.) It is unnecessary to cite other authorities upon this well-settled doctrine in regard to equitable estoppel. We do not understand it to be disputed by counsel for defendant. Their claim, as we understand it, is that there is nothing more in this case than a mere promise on the part of defendants to give the written contract, made honestly and in good faith, and that a refusal to comply with such a promise so made cannot serve as a basis for the application of the doctrine of equitable estoppel, the contention being that the mere failure to keep an oral promise to reduce an oral contract to writing cannot suffice to constitute the fraud essential to the application of such doctrine, and that there must be some other fraud shown, such as actual fraud to prevent the contract being reduced to writing. This claim presents the most doubtful question in this case. The authorities all recognize the proposition that the acts, conduct, or statements relied on as constituting ground for the estoppel must generally be acts, conduct, or statements amounting to a representation of fact, as distinguished from mere expression of opinion or intention, or mere promise of something to be done in the future. It has therefore been said many times that the mere refusal to make a writing, as agreed, is not such fraud as will take a ease out of the operation of the statute of frauds under the doctrine of equitable estoppel. This, undoubtedly, is ordinarily true, even where a party, relying simply on the honor, word, or promise of the other, has changed his position to his injury because thereof. But is it applicable to such a state of facts as we have before us ? Practically, defendants said to plaintiff: “We want you to enter our employ at- once. We know that to do so you must give up your life position in the police department and that you are not willing to do this unless you are assured of employment for ten years at three hundred dollars a month. A written contract is, under our statute, essential to guarantee you such employment. We will execute this contract just as soon as Mr. Fair returns from Europe. Go ahead and resign your position now and commence work with us at once, and it will be all right. The written contract will be given as promised.” Here certainly, in the language of a note to section 877 of 2 Pomeroy’s Equity Jurisprudence, was a representation of a future intention absolute in form, deliberately made for the purpose of influencing the conduct of the other party, and it is stated in such note that, notwithstanding the rule set forth in the text that a statement of intention merely cannot be a misrepresentation amounting to fraud, such a representation of intention as last set forth, if acted upon by the other party, is generally the source of a right, and may amount to a contract enforceable as such by a court of equity. Mr. Bigelow, in discussing the essentials of estoppel by conduct, and particularly the necessity of a representation or concealment of a fact, says that where the statement or conduct is not resolvable into a statement of fact, and does not amount to a contract, the party making if is not bound unless guilty of clear moral fraud or unless he stood in a relation of confidence toward him to whom it was made. (5 Bigelow on Estoppel, p. 572.)' The same learned author further says that situations may arise in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favor of the injured party, citing the case of Faxton v. Faxton, 28 Mich. 159 , in which a mortgagee was held estopped from enforcing his mortgage, where he had induced the son of a mortgagor, contemplating removal, to remain on the mortgaged land and care for it and support the family of the mortgagor, to whom the mortgagee was related, on a promise, honestly made, that the mortgage would never be enforced if he did so. (p. 577.) In Harris v. Brooks, 21 Pick. 195 , [ 32 Am. Dec. 254 ], it was held that a parol declaration by the holder of a note to a surety that he would look to the principal only was a good defense for the surety, on the ground that it lulled the party into security and prevented him from obtaining his indemnity, and that it would be a. fraud on the part of the holder to subsequently call upon the surety contrary to such assurance. In White v. Walker, 31 Ill. 422 , a somewhat similar case, it was said that while a promise to forgive a debt or forbear its collection, unsupported by any consideration, was ineffectual as a defense viewed merely as an agreement, yet if the surety has been induced by such assurance to neglect any of the means which might have been used for his indemnity, the “promise may have that effect as an estoppel, which it wants as a contract, and amount to a defense, in any subsequent action brought by the creditor.” These authorities are cited simply to show that the mere fact that there was no misrepresentation of fact, hut only a promise of future action, is not always a bar to equitable relief. The cases to be found in support of the doctrine that the mere omission or refusal to make a writing, as promised, is not such fraud as will take a case out of the operation of the statute of frauds, are generally cases where the promise was not made under such circumstances as would warrant the conclusion that it constituted, in the eye of equity, a contract, the repudiation of which would be a manifest fraud on the other party. For instance, in stating the rule, the supreme court of Indiana said in Caylor v. Roe, 99 Ind. 1 , that never has it been held that the simple failure or refusal to reduce a verbal contract to writing, unaccompanied by elements of estoppel or other circumstances invoicing the equitable powers of the court, is such a fraud as will authorize the courts in excepting the contract from the operation of the statute of frauds. The case of Equitable Gas etc. Co. v. Baltimore etc. Co., 63 Md. 285 , cited by defendants, was a case of an oral contract for the sale of personal property which, according to its terms, was not to be performed within one year. It was intended by the parties that it should be put into writing. The action was by the vendee to obtain an injunction preventing the disposition of the property to others and for specific performance. There were allegations showing the irreparable injury that would be suffered by the plaintiff in view of its action had in reliance on the contract. The court recognized it to be a settled rule “that the equity of part performance to entitle a plaintiff to specific execution of a contract within the statute does not relate to contracts for personal service not to be performed within a year.” But they further said that here the parties intended a written contract, and that if such contract was fraudulently withheld, if executed, or if not signed, if the execution be fraudulently and without justifiable cause delayed, a court of equity may require its production or enforce proper execution. It is obvious that “the application of the rules as to equitable enforcement must to a considerable extent be governed by the circumstances of each case.” (5 Browne on Statute of Frauds, p. 586.)

While the question is by no means free from doubt, we believe that it should be held that there were sufficient facts in this case to support a conclusion that the promise here to give such a written agreement as was required by the statute was made under such circumstances that the irrevocable surrender by plaintiff of his position in the police department in full reliance thereon, made it, in the eye of equity, a binding contract, the subsequent repudiation of which by defendants would constitute such a manifest fraud as would justify the application of the doctrine of equitable estoppel.

For the purposes of a new trial it may further be properly said that we are entirely satisfied with the opinion filed in this case by the district court of appeal of the third district, written by Justice Hart, of that court, so far as the question of- measure of damages is concerned. We adopt that portion of their opinion as the opinion of this court. It is as follows:—

The judgment and order denying a new trial are reversed.

Shaw, J., Melvin, J., Lorigan, J., and Henshaw, J., concurred.

Rehearing denied.