109 Mass. 53 | Mass. | 1871
Jury trial was waived, and the findings of the judge on all matters of fact are conclusive. He finds that the sale of the piano was upon express condition that the property in it should remain in the plaintiff until paid for, and that this condition had never been complied with. The other facts reportea do not necessarily make out an estoppel, or prevent the plaintiff from asserting his title as against this defendant. There is no fraud found, nor is it found that the bill of parcels was given, or the statement, that he had sold'the piano to Atwood, made by the plaintiff, with any knowledge or reasonable cause to believe that they were to be acted upon by anybody, or that the statement was to one who was sent as an agent by the defendant to inquire, or was intended to deceive by giving Atwood a false credit. In the language of Mr. Justice Curtis, “ to constitute such an estoppel, a party must have, designedly, made an admission inconsistent with the defence or claim which he proposes to set up, and another party have, with his knowledge and consent, so acted on that admission that he will be injured by allowing the admission to be disproved.” Hawes v. Marchant, 1 Curtis C. C. 136, 144. Audenried v. Betteley, 5 Allen, 382. Turner v. Coffin, 12 Allen, 401.
■ The case of Cornish v. Abington, 4 H. & N. 549, cited by the defendant, is not in conflict with this. It was an action for goods sold and delivered. There was evidence that a prior account in the same business had been made out to the defendant and paid by him, and that other invoices of goods supplied had been sent
Exceptions overruled.