*90On Petition for a Rehearing.
Mitchell, J. —It is contended in support of the petition for a rehearing, that, by delivering his property to the impostor under the circumstances disclosed, the appellee is estopped to assert, as against a good faith purchaser, that he had not, by such delivery, invested the impostor with apparent authority to sell the property. It is said the question is not whether the title passed by the transaction between the appellee and the swindler, but whether such an appearance of authority was created by delivering the cattle into his possession, with knowledge that they were to be shipped to a firm engaged in selling on commission, as that the appellee may not now assert anything to the contrary.
In the consideration of this question at the former hearing, our opinion was adverse to the view of the appellants in this regard. We held that as one of the essential factors to a contract — one of the contracting parties — was entirely wanting, no contract resulted, and hence no title passed, and that a delivery under the erroneous supposition that a sale had been made, neither invested the person to whom the delivery was made with title, nor with an apparent authority to sell or dispose of the property thus delivered. We adhere to this conclusion.
Our attention is called to the case of Samuel v. Cheney, 135 Mass. 278 (46 Am. R. 467). Upon an examination of the case we do not think it supports the appellants’ contention. The origin of that case was a suit to hold a common carrier liable for goods delivered to a swindler. An impostor falsely personated a merchant in good credit, and ordered goods to be shipped to himself by the name of the merchant personated, at a given number. The goods were delivered by the carrier according to the‘directions upon them, to the person who actually sent the order. The consignor supposed the order was from the merchant. The merchant neither gave the order nor received the goods, but the carrier delivered *91the goods at the place to which they were directed and to the person who actually ordered them. It was held that the contract of the carrier was, not that he would ascertain who was the owner of the goods and deliver to him, but that it was sufficient to exonerate the carrier from liability for negligence if he delivered the goods according to directions to the person to whom they were sent. That the consignor directed and sent the goods to a person different from the one he actually intended, could not make the carrier liable for negligence in delivering the goods at the place to which they were directed and to the very person who ordered them. No question of title or apparent authority was involved in the case. The sole question related to the carrier’s negligence.
The appellee was not estopped on the ground of negligence in delivering the cattle under the circumstances disclosed. To constitute an estoppel the party sought to be estopped must have designedly done some act or made some admission inconsistent with the claim or defence which he proposes to set up, and another must have acted on such admission with his knowledge and consent.
The owner of the cattle was induced to believe that he had made a sale to Fort, Johnson Co. Acting on that belief, he delivered the property, as he supposed, to a member of the firm. For want of a purchaser no contract of sale resulted. No authority or appearance of authority was either conferred or attempted to be conferred upon the impostor other or different from that which would have attended a sale. When it resulted that no sale took place, the delivery and all the incidents of the transaction were a nullity and ineffectual to support the claim of the purchaser. It was void ab initio. Unless negligence resulting in injury to another could be imputed to the owner of the property after he discovered, or might have discovered, the deceit practiced upon him, he had the right to treat the property as his own, and recover as for a conversion.
Upon the subject generally, see Edmunds v. Merchants, etc., *92Co., 135 Mass. 283; Thacher v. Moors, 134 Mass. 156; Rodliff v. Dallinger, 1 New Eng. Rep. 508; S. C., 4 N. E. Rep. 805.
Filed April 1, 1886.The petition for a rehearing is overruled. .