
    John C. McKinzie v. Absolem C. Steele, Thomas McVay, and William Grice.
    A party is not estopped from denying the truth of his own statements, unless it appear that they were made in bad faith, or to the prejudice of the adversary party.
    Error to the court of common pleas of Clinton county. Eeserved in the district court.
    The original case was an action by defendants in error against McKinzie, for money had and received for their use. They allege that one Wilson was indebted to them severally in the aggregate 39] amount of $812.70, and that one Galligher *being indebted to Wilson in a muck larger sum, McKinzie, as agent for these defendants, agreed to and did procure from Wilson an assignment to them, for their security, of the debt due from Galligher. They say that after the execution of the assignment, McKinzie, on the 23d of September, 1857, collected a sufficient amount of the debt due from G-alligher to pay their claim, but that he failed and refused to pay it over. They therefore demand iiidgment against McKinzie for the $812.70.
    McKinzie answers, admitting the agency, the agreement to procure the assignment, and that he did procure it. But he says that it was executed on the 9th of October, 1857, and not before the 23d of September, and that he received no money of Galligher after said assignment; the last he received being paid to him on the said 23d of September, and by him immediately paid over to Wilson, or his other creditors.
    Upon the trial it was shown that on the 23d of September, 1857, McKinzie received of Galligher money due from the latter to Wilson, to the amount of about $1,300, and immediately paid the same over to Wilson; and that McKinzie did not after that date receive any money from Galligher. There was also evidence tending to prove that the said assignment was made after that time, to wit: on the 9th of October, 1857; and likewise evidence tending to prove that McKinzie, before the 23d of September, 1857, to wit, on the 18th or 19th of September, 1857, had stated to the defendants in error that he had already procured said assignment, and that their debt had thus been made secure. But there was no evidence to show that the statement, if so made, was made fraudulently, or in bad faith, or that the defendants in error had forborne any action, or relinquished any right or securities, or been otherwise prejudiced by reason thereof.
    Upon this evidence the court instructed the jury that if they found that McKinzie did make said statement before the 23d of September, 1857, “and the defendants relied and acted upon it, by ceasing to make further efforts to obtain the assignment of the claim on Galligher, McKinzie was estopped in law from denying the 40] truth of the statement, though in fact *ke may not have procured the assignment until afterward.” McKinzie excepted to this charge.
    
      A verdict and judgment were rendered against him for the amount claimed, and he now seeks to reverse the judgment, upon the ground, among others, that the charge was erroneous.
    
      Hildebrant & Stone, for plaintiff in error:
    We do not dispute that what is said by the court is the law, but we do say it is not all of the law, as applicable to the point, and that the jury were misled by it. It is good law as far as it goes, but it is incomplete, and is left where it did not give the jury a clear idea of the law of the ease, and hence it is calculated to mislead them. Wash. Mut. Ins. Co. v. Mer. & Man. Ins. Co., 5 Ohio St. 450; White v. Thomas, 12 Ohio St. 312. Had the court continued the charge by telling the jury that where statements have been made by one party to another who relies on them, and acts on them to his injury, if allowed to be contradicted, the ground would have been more fully covered. We submit the following as the law in regard to estoppels in pais, and beg for it the careful consideration of the court:
    1. Estoppels are not favored at law, and less in equity. 4 Ohio, 469. The doctrine of estoppel can not be used except to subserve justice and right. 2 Ohio St. 551-560. The act or assertion must be willful, with intent to deceive the other party. 7 Ohio St. 99. It is founded in fraud. Ibid, 99. Parties are only estopped from "denying their own acts when such denial will operate to the injury of another, and when such expressions are expressly designed to influence, and do influence, the conduct of such persons. Willard Canal Co. v. Hathaway, 8 Wend. 483 ; Beardsley v. Foot, 14 Ohio St. 414, and other cases there cited.
    The party to whom the statement was made must not only rely on the statement, but must rely on it to his injury. 2 Parsons on Contr., 793, 794, note Q.
    2. Suppose that McKinzie did make the statement claimed, and Steele 'relied on it, how was he affected by it to his injury? The liability was already incurred. If Wilson *Was good for the [41 debt, Steele was not injured. If insolvent, and unable to pay, he was in no worse condition after than before the statement was made. Is there any evidence before the court that Wilson was unable to pay the debt, and has been ever since? Or have these plaintiffs attempted to collect their debt of Wilson and failed? Will a mere statement change the nature of a liability, taking it from one man’s shoulders and placing it on those of another, without consideration? We hold not. If the statement of Steele is correct, it only shows that the plaintiffs relaxed their vigilance in looking after a debt against a man who was good, and has been good for it ever since, or was hopelessly insolvent and unable to pay.
    
      R. B. Harlan, A. W. Doan & R. E. Doan,
    for defendants in error, filed a brief on other points than the one upon which the case is disposed of.
   Welch, J.

This instruction of the court can not be sustained. Essential elements of an estoppel are wanting, both in the case supposed by the court, and in that made by the evidence. To work an estoppel there must be prejudice to the party setting it up, and also fraud or bad faith — or their equivalent, gross negligence — in the party to be estopped. These are wholly wanting in the case. For aught that appears, the rights of defendants in error are entirely unaffected by the false statement; and for aught that appears, the statement may have been made in the belief that it was true. It may be that it was made in bad faith, and that the defendants were greatly injured by it; but neither of these facts appear in the ease made in the charge, or .by the evidence, as set out in the bill of exceptions. The court speaks of the defendants ceasing “ further ” efforts. There is nothing in the case to show that they had been making any efforts, much less to show that they were such as might have resulted in securing the debt, or otherwise benefiting the plaintiffs.

This view of the case renders it unnecessary to decide another question — that is, whether, in ah action for money had and received, the defendant can be estopped from denying the truth of 43] his statement, not that he received the money, but that *he had authority to receive it — not that he had the money, but that he might have had it. Such a statement would estop him in an action for neglect of duty, or for trover and conversion of the paper. Whether it would estop him from denying the receij>t of the plaintiff’s money, is another question.

Judgment reversed, and cause remanded for further proceedings.

Day, C. J., and Brinkerhoff, Scott, and White, JJ., concurred  