Osgood v. Nichols , 71 Mass. 420 ( 1855 )

Metcalf, J.

We are of opinion that the evidence, which the defendant offered at the trial, was not admissible, either as a defence to the action or in reduction of damages. The goods were entrusted to him for sale, as an auctioneer, and he received and sold them in that capacity. He made no claim on them as his property, until he was called upon for the proceeds of the sale. And it neither appears, nor is suggested, that he acted, in the sale, under any ignorance or misapprehension of his own rights. If the goods were his, he purposely misled the plaintiff, and is estopped to make the defence which he now offers. Dewey v. Field, 4 Met. 381. Cox v. Buck, 3 Strob. 367. Brown v. Wheeler, 17 Conn. 345. Strong v. Ellsworth, 26 Verm. 373. Hawes v. Watson, 2 B. & C. 540. 2 Smith’s Lead. Cas. (3d Amer. ed.) 531 & seq.

Exceptions overruled.