
    Edwin D. Morgan and Others v. Miller M. Spangler sheriff, etc.
    1. Though admissions and declarations in pais may be strong evidence against the party making them, yet they will operate as an estoppel in favor only of those whose conduct, it may be fairly supposed, they were intended to influence. Strangers, casually hearing of such declarations, can not, by acting on them, preclude the party from showing the truth.
    2. A quantity of railroad iron was in the custody of forwarding agents, who-held the same for A., the latter being entitled to the possession thereof, under a conveyance from B., which was intended to operate as a security for the-payment of a debt due from B. to A. Through a mistake of facts, A. wrote to the agents instructing them to “ release the iron to B., as all interests had been settledand the agents thereupon notified B. that they held the iron for him. After this, but before the iron was actually delivered to B., a judgment creditor of B. caused an execution to be levied on a part of the iron, an cl soon afterward A., upon discovering his mistake, countermanded his instructions. Held: That under these circumstances, the ricchts of the creditor under his levy, w-ere no greater than those of B., his debtor at the time of the levy j and that the law will not permit a mere mistake of facts, to give an effect, in favor of the creditor, to the constructive possession of B., inconsistent with the rights of A. under the contract subsisting between tho parties.
    Error to the district court of Cuyahoga county.
    
      The plaintiffs in error, constituting the firm of E. D. Morgan & Co., brought this action in the court of common pleas of Cuyahoga county, by petition filed July 15, 1856, to recover from the defendant the possession of 1568 tuns of railroad iron, in bars.
    The defendant answered, disclaiming as to the excess over 1525 tuns, in respect of which he denied that the plaintiffs were, at the time of commencing their action, the owners of said iron, or entitled to the possession of any part of it. He alleges the general ownership of said iron to be in the Cincinnati and Chicago Railroad Company, and claims a special interest therein, and right of possession thereof, to be in himself, as sheriff of Cuyahoga county, in virtue of a writ, of-execution duly levied on 600 tuns thereof, by him as such sheriff, on the 24th day of January, 1856, said execution having been duly issued from the superior court of Cincinnati, upon a judgment in favor of Timothy S. Goodman and others (assigned to Henry Vallette), and against said railroad company as principal, and sundry other persons as sureties; and also in virtue of subsequent writs of execution, or- orders of sale, issued on the same judgment, under one of which, and pursuant to a clause therein commanding him to make an additional levy, in case the property theretofor taken in execution should not be sufficient in his opinion to satisfy the judgment, he made a further levy, July 15,1856, on 925 tuns more of said iron, making in all 1525 tuns, levied on as aforesaid, and all of which had remained in his possession, from the date of the first levy, till the commencement of plaintiffs’ action. Defendant also claimed a further special interest and right of possession, in virtue of sundry orders of attachment, issued by the court of common pleas of Cuyahoga county, against the property of the said railroad company, and which came into defendant’s hands, as such sheriff, for execution, one of which was issued March 8, 1856, at the suit of Alvin Bronson, and Lucius B. Crocker, for the satisfaction of a claim against said railroad company, for charges of transporting this and other iron of said company from New York to Cleveland, and for storage; and for which they held a lien on said iron, etc., and which order the defendant executed, on the said 8th day of March, 1856, by attaching the same 600 tuns of iron, upon which the previous execution was first levied. A second order of attachment was issued, March 29,1856, at the suit of John Bates, and was executed on the same day, by attaching the same 600 tuns of iron. A third order of attachment was issued, at the instance of the Bank of the Capitol, against the said railroad company, dated May 26,1856, and executed on same day, by attaching 1300 tuns of said iron, including the 600 tuns before mentioned. And a fourth order of attachment was issued and executed, in the same manner as the order last aforesaid, May 31,1856, at the instance of Timothy S. Goodman, and others.
    The cause was submitted to the court of common pleas, on petition and answer, at May term 1857; whereupon the right of possession was adjudged to be in the defendant, and damages were awarded in his favor, in respect to each of the writs, executed by levy, and attachment, as set up in his answer, amounting in the aggregate to $31,824rVo" From this judgment the plaintiffs appealed.
    In the district court, at September term, 1860, the plaintiffs replied (by leave) to the answer:
    1. That the Cincinnati and Chicago Railroad Company was not the owner of said iron, generally or specially, nor in possession of it, on the 24th of January, 1856, nor at any time thenceforth.
    2. That the defendant’s proceedings, as sheriff, under the supposed warrant of the levies and orders of attachment described in his answer, were illegal and 'invalid; and that ho did not acquire any interest in said iron, or any part of it, nor any right of possession.
    3. That in the month of December, 1855, Joseph II. White & Co., being creditors of the Cincinnati and Chicago Railroad Company, and also liable as indorsers for its accomodation, the company, in order to enable them (White & Co.) to pay themselves, and to raise money in discharge of such indorsements, sold and transferred to them all the iron described in the petition of the plaintiffs (more or less) with power to dispose of the same absolutely, at their own pleasure, and apply the proceeds (first) in satisfaction of a lien which McCready Mott & Co. then had as to one portion, and a lien which Elisha C. Litchfield had as to another portion, and (second) to pay the claim op White & Co., as creditors, and to discharge the indorsements for which they were liable. That White & Co. sold the iron to Elisha C. Litchfield, describing it as 14421-tuns, but intending to sell the entire quantity transferred to them by the Cincinnati and Chicago Railroad Company, as aforesaid, at Cleveland or elsewhere. And that the plaintiffs (E. D. Morgan & Co.) purchased the same iron from Litchfield, and paid him for it.
    The plaintiffs then deny that Bronson & Crocker had a lien upon the iron, or any part of it, on the 24th of January, 1856; alleging, also, that if such lien ever existed for transportation or storage, or otherwise, it had been abandoned by Bronson & Crocker before that time.
    The cause proceeded to a trial in the district court, at the same term, upon the issues so joined; and the verdict was in favor of the plaintiffs as to 942J tuns, but against them as to the residue (442^|^ tuns), to-wit: 76 tuns of English iron, 248532-|4r tuns of American iron, and 118sVfV tuns of compound rail. Whereupon the jury assessed damages in favor of the defendant, and against the plaintiffs, for $35,969 59.
    The plaintiffs moved for a new trial because the court had erred in several of its rulings upon the testimony; because it had refused to instruct the jury as prayed by them; because it had misdirected the jury ; because the verdict was contrary to law and the weight of the evidence; because the plaintiffs were taken by surprise in the course of the trial; and because the damages were excessive. But the defendant having remitted $1,065 as excess of damages above his claim, the court overruled the motion of the plaintiffs, and rendered judgment against them for $34,904 59 and costs.
    A. bill of exceptions taken by the plaintiffs, on the trial, embodies all the testimony offered on the trial, but as the errors assigned, and relied on by counsel in argument, relate mainly to the charge of the court, it will be sufficient to state so much of the evidence as is necessary to a proper understanding of the charge.
    Evidence was offered tending to show, that one lot of the iron in controversy, consisting of 500 tuns, was purchased in the summer of 1855, of Eeeves, Buck & Co., of Philadelphia, by the Cincinnati and Chicago Eailroad Company for the sum of $30,000, and paid for in cash. The iron was delivered on board of vessels, in Philadelphia, in August of that year, and on the 28th day of that month, the railroad company contracted with McCready, Mott & Co., of New York, for an advance of $20,000 in cash to the company, on the security of the iron. McCready, Mott & Co. advanced the $20,000, and the 500 tuns of Aon were transferred to them, by written indorsements upon the several bills of purchase as follows :
    “ For value received, the Cincinnati and Chicago Eailroad Company have this day sold and hereby deliver to Messrs. McCready, Mott & Co. the iron specified within; and the same is now being forwarded to Anderson, Indiana, to be held by them as collateral security for the fulfillment of a certain contract made this day — a copy of which is deposited in the Bank of the Eepublic. Caleb B. Smith, President.”
    
    “New York, August 28,1855."
    The contract referred to in these assignments, as made on the same day, was in the following terms :
    “ The Cincinnati and Chicago Eailroad Company have this day purchased of McCready, Mott & Co. five hundred (500) tuns, be the same more or less, of railroad iron made by Eeeves, Buck & Co., Philadelphia, for the sum of thirty thousand dollars ($30,000), on which they have paid the sum of ten thousand dollars ($10,000), which iron the said company agree to receive at Cleveland, Ohio, or Anderson, Indiana, on or before the 1st day of December next; having previously thereto paid the remaining twenty thousand dollars ($20,000) in the city of New York, as below provided, and having also previously paid all the freight, charges, and expenses of said iron from Philadelphia to Anderson.
    “ The said railroad company have this day lodged in the hands of McCready, Mott & Co. five thousand dollars ($5,000); at par of the ten per cent, income bonds of the Cincinnati,. Dogansport and Chicago Railroad Company, to be held by them as security for the freight and charges of said iron to-Cleveland; and when the said company shall have paid the same, then, and not till then, the said iron may go forward to-Anderson — the said McOready, Mott & Co. holding the said $5,000 of bonds as security .for the freight and charges on said iron from Cleveland to Anderson. And upon the full payment by said railroad company of the said freight and charges, and otherwise fulfilling this contract, the said McCready, Mott & Co. shall deliver up to said company the said $5,000 bonds.
    “ The said railroad company have this day delivered to the said McCready, Mott & Co. their note of this date, indorsed by Wm. S. Rowland & Co. for the said sum of twenty thousand dollars ($20,000) payable on the 1st day of December, 1855, at the Bank of America, in the city of New York, as collateral security to (and not as a payment of) this contract; upon the payment of which said note, and of all the freight and charges on said iron (and not before) the said McCready, Mott & Co.. are to deliver to said railroad company an order for the delivery of said iron. But in case of any default in the payment of the said note, or in the performance of any part of this contract, at the maturity of either, then the said Mc-Cready, Mott & Co. are authorized, and are hereby empowered, to sell the said iron at such place or places, and time or-times, and at puhlic or private sale, with or without notice, as they may deem best, for account of the said railroad company ; and after deducting from the proceeds thereof the said' sum of twenty thousand dollars, or so much as may be due-thereon, together with all interest, costs, charges, and expenses of every nature, the said McCready, Mott & Co. are to-pay over to the said railroad company any surplus that may remain in their hands. And in the event of any deficiency existing after such sale, to cover the amount then due as: aforesaid, then the said railroad company will pay the same on demand, in the city of New York, at the office of Wm. S.. Rowland & Co.
    “ The said railroad company assume exclusively all risk of non-delivery of the iron at Anderson, or Cleveland, from default of any railroad or transportation company who may undertake to forward it, as well as from the default of the insurance company who may insure it, in case of its loss : and in the event of either of such defaults, a tender of the transportation company’s receipt and of the polices of insurance, at the office of said Rowland & Co. will be considered as a •delivery of said iron.
    “And the said W. S. Rowland & Co., in consideration of the .above, and of one dollar to them paid by McCready, Mott & ■Co., hereby guaranty the punctual payment of all of the said moneys, and of the fulfillment of all the provisions of this •contract on the part of the Cincinnati and Chicago Railroad Company ; and the said McCready, Mott & Co. hereby agree to perform their part of the above contract, without assuming the remotest liability for the condition or safety of the said iron ■■fhrther than their own acts may prejudice them.
    “Dated, New York, August 28, 1855.
    Caleb B. Smith, Prest.
    
    McCready, Mott & Co.
    ■“Ale. Hand, Witness. Wm. S. Rowland & Co.
    “We hereby guaranty the faithful performance of the within •contract on the part of the Cincinnati and Chicago Railroad ■Company; and, for so doing, we have received the sum of one ■dollar. Wm. S. Rowland & Co.”
    The foregoing contract was, on the 25th of December, 1855, assigned to Joseph H. White & Co. by indorsement as ■follows :
    “Eor value received, we hereby assign, transfer and set •over to Joseph H. White & Co., of No. 50 William street, all our right, title, interest, and claim in and to the within contract ; giving them full right and authority to control said iron as completely as we might or could do were not this ■assignment made. But we are not to be, in any way, responsible for any default of said railroad company, or any other ¡party to said contract save ourselves.
    McCready, Mott & Co.
    ‘‘New York, Dec. 15, 1855.”
    
      An assignment in similar terms was also indorsed thereon,, under date of February 16, 1856, from Joseph H. White &■ Co., to the plaintiffs.
    An agreement of Joseph H. White & Co., with the railroad company, dated New York, January 2, 1856, was also given in evidence, which reads as follows:
    “Whereas, Joseph H. White & Co., of No. 50 William street, New York, indorsed, at the instance and for the sole benefit of the Cincinnati and Chicago Railroad Company, certain certificates of deposit issued by the America Bank, Trenton, New Jersey, amounting to upward of fifty thousand dollars, and advanced for said company divers sums of money to various-persons: and whereas, said railroad company is indebted to said White & Co. in the sum of ten thousand dollars and upward for commissions and services, and for office rent and stationery: and whereas, said White & Co. became the assignees of McCready, Mott & Co., on or about the first December last, of their contract for 500 tuns iron rails sold to them by said railroad company upon the condition and understanding with said company that they should be the absolute owners of said iron until said company should repay them said, money so advanced and interest, provided the same was done • within four months from date of such assignment: and whereas,, said railroad company being desirous to fully indemnify said White & Co. for such indorsements, and to pay them for such advances and such other indebtedness, and further assure their title to said five hundred tuns of iron, this paper evidences that said railroad company has and does hereby transfer to-said White & Co. all of their right and title in and to said five hundred tuns of rails, the possession whereof was transferred, to said White & Co. by McCready, Mott & Co., as aforesaid,, and at the time aforesaid, and transfer to them all of said company’s title and claim in and to all the rest and residue of the iron rails, now at Cleveland, in which said company has any title, or to which they have any claim, being about one thousand tuns, subject only to the claim of Elisha C.. Litchfield to the same, and subject to his possession and control thereof. And said White & Co. are hereby fully authordzed and empowered by said railroad company to take possession of and control the same, from said Litchfield or his assigns, whenever their claim shall cease and determine. Said company likewise transfer to said White & Co., for the considerations aforesaid, the absolute possession and title of said company in and to all other iron now at Cleveland, and put them in possession, and give them the control thereof, subject only to the condition aforesaid.
    “Cincinnati and Chicado Railroad Company,
    “ New York, Jan. 2,1856. By Caleb B. Smith, Pres’t.”
    An agreement between Joseph H. White & Co. and the railroad company, dated January 12,1856, was also read in evidence, as follows:
    “Whereas, Joseph H. White & Co. have, at the instance and ■request of the Cincinnati and Chicago Railroad Company, of Indiana, indorsed certain time-certificates of deposit issued by the America Bank, Trenton, N. J., and whereas, said company is largely indebted to said Joseph H. White & ‘Co. for money ■advanced and commissions, office rent, stationery, agency, etc. And whereas, in order that said White & Co. might be fully indemnified and protected in the premises, and be finally paid, said railroad company transferred to them the title and possession of certain iron rails at Cleveland, with absolute power and authority to control the same: And whereas, said company is ■desirous to repurchase said iron on the line of the road, in Indiana, and is desirous that it shall be moved to the nearest point (which is Anderson) in order that they may, if they can repurchase it, be facilitated in the use of it: Now, in consideration of the premises, and of the further promise and agreement that said company will pay, at their own proper cost, the ■ expenses of transportation of said iron to Anderson, and will ship it in the name and for said White & Co., and will not use it or incumber it, or otherwise exercise acts of ownership over ■it, but will store it in the name of said White & Co., and the ■ same shall, at all times, be controlled by their order, so that their right of possession shall never be changed unless and until said company shall purchase the same from said White ■■k Co. for a consideration and upon terms hereafter to be agreed upon, satisfactory to said White & Co., said White & Co. agree that so much of said iron as can be, conveniently, may be moved from Cleveland to Anderson, in manner aforesaid, and subject to the terms and conditions aforesaid, until further orders ; and, for that purpose, they will give orders to their •agents at Cleveland to let the company move it.
    “ But it is expressly understood and agreed that said rail road company, in all this transaction, are to be'regarded and held as agents of said White & Co., and will hold themselves responsible as such, except that the money paid for freights, etc., by said company, shall in no way be a claim against said White & Co., or against said iron; as the railroad company, in consideration of the premises, agree to pay them, and to .assert no claim for them. J. H. W. & Co.”
    “New York, January, 12,1856.”
    The defendant also read in evidence the following letter from White & Co., addressed to Guyles & Bash, who were commission and forwarding merchants at Cleveland,- to whom the iron had been consigned, and who, at the date of the letter (Jan. 14,1856), held the same for White & Co.
    “Office of Joseph H. White & Co.,
    “No. 50 William St., New York, Jan. 14, 1856.
    
      “ Messrs. Guyles & Bash, Cleveland:
    “ Gentlemen: Yours of the 11th is received. In reply, we have to say that you may release to the Cincinnati and Chicago Railroad Company the iron -assigned to us by McCready, Mott & Co., and belonging to the road, as all interests have been settled. Very respectfully,
    “Joseph H. White & Co.”
    It further appeared in evidence, that Guyles & Bash showed «his letter of January 14, to the agents of the railroad company at Cleveland, and told them that Guyles & Bash would thenceforth hold this iron for the railroad company, and that they might ship it as fast as they paid the freight and charges. The company thereupon commenced shipping portions of the iron, paying freight and charges, as shipments were made. On the 24th of January, 1856, Vallette, the owner of the Goodman judgment, went to the office of Guyles & Bash, and, at his own request, saw and read the letter of January 14, from Joseph H. White & Co., and he also learned from Guyles & Rash, that they held the iron for the railroad company. Yallette thereupon delivered the writ of execution to the sheriff, and caused a levy thereof to be made on 600 tuns of the iron. On the 7th of February, 1856, Guyles & Bash received from Joseph H. White & Co. the following telegraphic dispatch.
    “New York, February 7, 1856.
    “Guyles & Bash, Cleveland:
    “ Ours of January 14 was written under misapprehension. The company has not arranged with us, and you must not release the iron to them. Joseph H. White & Co.”
    To which Guyles & Bash replied on the next day, by letter,, as follows:
    “ Cleveland, February 8, 1856.
    “ Messrs. Joseph H. White & Co., New York:
    “ Gentlemen: Your telegraph was received this forenoon. About 279 tuns of the iron had been shipped since your advices of the 14th ult., supposing that everything was arranged as stated. The balance of the iron in which you have an interest, is now under the control of the sheriff of Cuyahoga county; having been attached by a Mr. Yallette of Cincinnati. The nature of his claim we know nothing about; so that there is no probability that the iron will be removed until that is settled. Yours, very truly,
    “Guyles & Bash.”
    The return of the sheriff to the writs of execution, and orders of attachment, of which copies were exhibited with the defendant’s answer, did not specially describe the iron upon which the same had been executed by levy and attachment, otherwise than by stating the quantity so levied on, and attached, and said writs, and orders, with the returns of the sheriff indorsed thereon, were offered in evidence by the dedefendant, and admitted by the court, against the objection of the plaintiffs, and to which plaintiffs excepted.
    And the parol evidence of the defendant was also admitted against similar objection, for the purpose of identifying the particular iron, on which the several writs of execution and attachment were respectively levied; and to this the plaintiffs also excepted.
    The plaintiffs, by their counsel, moved the court to instruct the jury in several matters of law, which instructions were refused, except in so far as they, or some of them, are contained in the charge given by the court. It is not material to set out the instructions asked by the plaintiffs. The court charged the jury as follows:
    “ That the return of the officer was the only evidence which could be received to establish the fact that a levy had been made; but that it would be competent for the party claiming under the levy, to identify, by parol testimony, the particular property levied upon, in case the return of the sheriff failed to describe it with sufficient certainty to identify it from similar property located near that upon which the levy was actually made.
    “ That the sheriff might levy upon 600 tuns of iron, the same being -part of a pile of iron containing more than that quantity, and take possession of the whole for the purpose of holding, separating, and disposing of the same.
    “ That the levy made in that form would be a good and valid levy, and vest in the sheriff a right to the iron so levied upon ; and the same rule would apply if the iron of the railroad company was mixed in a pile with iron of plaintiffs, but distinguishable therefrom. The sheriff, upon making his levy upon a given quantity, and taking possession of the pile for the purpose of holding and separating the same, would thereby acquire a valid right to that portion of the iron so levied upon. Where' the iron was of such a character as not to be distinguishable the one from the other, and had become intermingled — what, in law, is termed a confusion of goods — still the same would be subject to levy; and the sheriff might levy upon a quantity even less than the entire interest of the railroad company therein, and, in like manner, take possession of and hold the entire pile for the purpose of adjusting the rights of the railroad company with the other owners, and of separating and disposing of the same. This possession so taken by the sheriff, however, would not confer on him any greater right to make further levies on such excess than he would have had if he had not taken possession of such excess.
    “That if White & Co. paid-McCready, Mott & Co. the amount of their claim against said railroad company, and for which they held a lien upon the iron in question, and took an assignment of their claim on the iron, and the Cincinnati and Chicago Railroad Company, with a knowledge of that fact? assented to or recognized such assignment and the claim of White & Co. under it, the railroad company would be bound by it; and if the tranaction was Iona fide, and for a consideration actually paid by White & Co., the defendant could hold no part of such iron under his levies, unless said White & Co. afterward relinquished their claim, or delivered or parted with the possession of said iron to the railroad company.
    “ That the letter of White & Co. to the consignees at Cleveland, Guyles & Bash, of the 14th of January, 1856, together with the communication by the latter to said railroad company of the fact of their receipt of such letter, and that they held said iron for said railroad company, would operate in law as a relinquishment of their possession of said iron; and although no actual delivery had been made by said consignees to the railroad company, still creditors of said company, having knowledge of said letter and such release of their possession of said iron, and that said Guyles & Bash held the same for said railroad company, might acquire a valid lien upon the same by levy thereon.
    “ That if the letter of White & Co. to Guyles & Bash was written under a mistake of facts, and when the mistake was discovered by said White & Co., it was corrected, and they, by telegraph, informed Guyles & Bash of the mistake, and countermanded their instructions contained in said letter, and requested them not to deliver or release said iron to said railroad company, so far as the iron had not been already actually delivered to said railroad company, or was not, afterward actually delivered or released to said company, by Guyles & Bash, and no rights or claims of third persons had intervened, the possession or right to the possession of said iron, in White & Co., would not, from that time, be changed or affected, but would remain in them as if said letter of 14th January, 1856, had not been written: but if the defendant, with a knowledge of said release of 14th January, 1856, and prior to the subsequent countermanding of -the same, had made a valid levy upon said iron, he would thereby acquire a valid lien thereon, and have the right to hold the same, notwithstanding the subsequent instructions to Guyles & Bash to not deliver the iron to the company; and this whether the company had or had not paid the charges upon said iron for the transportation thereof.
    “ The defendant claiming only a special property in said iron, by virtue of his levies on the same, can recover only to the extent of the amount of the debts to satisfy which these levies were so made.”
    To which charge as given, as well as to the refusal of the court to charge as requested, the plaintiffs excepted.
    
      Gf. JS. Pugh and R. M. Gorwine, for plaintiffs in error.
    
      PaeJcus Nolle, for defendant in error.
   Scott, J.

The errors relied on, in argument, as ground for ■he reversal of the judgment of the district court in this case, relate mainly to the charge of the court.

Exception was taken upon the trial to the admission in evidence of the return of the sheriff upon the writ of execution, which set out a levy under the writ upon 600 tuns of railroad iron; ” and also to the admission of parol evidence for the purpose of identifying the particular iron levied upon, and, in connection with this, the charge of the court upon that subject is claimed to be erroneous.

The objection to the return seems to be placed on the ground that the description of the property levied on is not sufficiently definite. But we think the description reasonably certain. It states the article levied on, its kind, and quantity; and in many cases it would be difficult for the officer to do more. And parol evidence is always admissible for the purpose of applying a verbal description to its proper subject, by way of identification. We think there was no error in the admission of the evidence or the charge of the court on this subject.

Nor do we think the court erred in holding that the sheriff might make a valid levy upon 600 tuns of iron, composing part of a larger quantity, and take possession of the whole for the purpose of holding, separating, and disposing of the part levied on. The validity of a levy thus made, would not, we apprehend, be affected by a neglect on the part of the officer, to make the proper separation, within a reasonable time, though he might thereby incur liability in respect to the property not levied on, and unreasonably retained in his possession. To all this portion of the charge we see no just ground of exception.

Exception is taken to the' next portion of the charge, which is said to interpret the agreement of August 28,1855, as creating a lien merely, in favor of McOready, Mott & Co., whereas that agreement gave said firm an entire and absolute power of sale, privately, or publicly, and thus enabled them to transfer as well the title, as thp possession of the iron. But •we do not understand the charge of the court as being intended to declare definitely the character and extent of the interest in the iron, which passed to McOready, Mott & Co. by the agreement of August 28, 1855. The court was not asked to pass upon the question, and certainly did not so do, in direct terms. The claim of that firm upon the iron is incidentally termed a lien in the charge, as it is also in the plaintiffs’ own pleadings. But the court recognized that claim, by wnatever name it might be called, as sufficient in the hands of McOready, Mott & Co., or their Iona fide assignee, while retained, to defeat any rights set up under defendant’s levy. So long as such effect was given to the claim, the plaintiffs have no reason to complain that the court, following their own example, called it “ a lien.” There is language in the close of the same paragraph of the charge, from which it might be inferred that the court regarded White & Co. as, at best, but the holders of a mortgage lien, which would be invalid unless accompanied by actual possession of the property, or unless the mortgage was filed in the office of the recorder of Cuyahoga county. If such a holding were distinctly apparent in the charge, its correctness might well be drawn in question, for various reasons. The iron seems to have been in transitu, at Cleveland, destined for a point in Indiana; the mortgagor was a corporation of that state; the mortgagee resided in New York ; and the mortgage was executed there ; and the mortgagor not having actual possession of the property, could make no actual delivery to the mortgagee.

But as this question does not distinctly arise, either upon the instructions asked, or those given in the case, we prefer to leave it open.

Further exception is taken to the same paragraph of the charge, as amounting to a declaration that McCready, Mott & Co. could not transfer their title except for a valuable consideration in money, actually paid.

This part of the charge is, perhaps, justly liable to verbal criticism; but we think the language of the court will admit of a different construction from that put upon it by counsel. We understand the charge as importing no more than this : that if the consideration of the transfer of the claim of Mc-Cready, Mott & Co. was the payment of its amount, made through White & Co.; then that the transfer would be valid as against the creditors of the railroad company, provided the payment was actually, and in a substantial sense, a payment made by White & Co., and not with funds belonging wholly to the railroad company, in which White & Co. had no interest. And that the railroad company could not, as against its creditors, create a valid lien upon its property, in favor of White & Co., without an actual valuable consideration. And if this construction of the charge be correct, we see no objection to it.

The next exception to be considered, calls in question the correctness of the instructions given in charge, in relation to the effect of the letter of White & Co. addressed to Gruyles & Bash, dated, January 14, 1856, and the communication of its contents by the latter to the railroad company. By that letter White & Co. had said to the consignees, Guyles & Bash; “ you may release to the Cincinnati and Chicago Railroad Company the iron assigned to us by McCready, Mott & Co., and that belonging to the road, as all interests have been settled.”

And the court told the jury that this letter, together with the communication by Guyles & Bash to the railroad company of the fact of their receipt of such letter, and that they held said iron for said railroad company, would operate in law as a relinquishment of their possession of said iron; and although no actual delivery had been made by said consignees to the railroad company, still creditors of said company, having knowledge of said letter, and such release of their possession of said iron, and that said Guyles & Bash held the same for said railroad company, might acquire a valid lien upon the same by levy thereon.”

Beyond doubt, this letter, regarded as an admission, made by White & Co. under whom the plaintiffs claimed title, was pertinent and strong evidence, tending to prove that the claim of White & Co. had been adjusted and satisfied by the railroad company, and that the absolute ownership and possession of the iron was thenceforth in the railroad company, so far as White & Co. were concerned. But, regarded as a mere admission, the law would give it no conclusive effect. As mere evidence it might be explained; it might be shown to have been written under a mistake of facts. It might be read in the light of the agreement entered into but two days before its date, between White & Co. and the railroad company, by which White & Co. had agreed to let the iron be moved from Cleveland to Anderson in Indiana, through the agency of the railroad company, but in the name of White & Co., and subject at all times to their control, and without prejudice to their rights; and had promised and agreed to give orders to their agents at Cleveland to let the company so move it. This agreement had been read in evidence, and there was only testimony tending to show that the letter of the 14th January, was written and sent in pursuance of said agreement and not otherwise, But this explanatory evidence, with the light which it might reflect on the intentions of the parties, was in effect withdrawn from the consideration of the jury, by the legal effect which the court gave to the letter itself, in favor of a levy made at the instance of creditors of the company, “ having knowledge of said letter,” and of the action of Gruyles & Bash, in pursuance thereof.

As the court made the creditor’s knowledge of the receipt by the consignees, and their consequent action thereon, a condition, upon which the validity of his subsequent levy would depend, it would seem that the court regarded the receipt of the letter, and the consequent circumstances, as operating by way of estoppel, so as to preclude White & Co. from denying the absolute ownership and possession of the iron by the railroad company. Were White & Co. so estopped?

The rule in reference to what are called estoppels in pais, is thus laid down in the leading case of Pickard v. Sears, 6 Ad. & El. 474: “ Where one by his words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things, as existing at the same time.” This rule was qualified or explained in the case of Freeman v. Cooke, 2 Exc. Rep. 654, in which it was held that “ by the term willfully, in the rule, we must understand, at least, that the party means his representation to be acted upon, and that it is acted upon accordingly.” In a recent case, in the house of lords (Jordan v. Money, 5 H. of L. Cas. 212), it was said by the lord chancellor, “ I think it is not necessary’that the party making the representation should know that it was false ; no fraud need have been intended at the time. But if the party has unwittingly misled another, you must add that he has misled another under such circumstances, that he had reasonable ground for supposing that the person whom he was misleading, was to act upon what he was saying. It will not do if he merely said something, supposing it to be quite right, and then that some stranger, having heard and acted upon it, should afterward come to him to make it good.”

The same principle is established by the case of Howard v. Hudson, 75 E. C. L. R. 10 (2 El. & Bl.), and is fully sustained by the general current of American authorities. Nichols v Arnold, 8 Pick. 172; Foster v. Newland, 21 Wend. 94; Crockett v. Lashbrook, 5 Monroe, 530; Davis v. Thomas, 5 Leigh, 1; Bank v. Wollaston, 3 Harrington, 90; Hicks v. Cram, 17 Verm. 449; Kinney v. Farnesworth, 17 Conn. 355; Commonwealth v. Maltz, 10 Barr. 527; Copeland v. Copeland, 28 Maine, 525 ; Otis v. Sill, 8 Barb. Sup. C. 102 ; Taylor v. Zepp, 14 Missouri, 482.

The application of this rule, thus explained, to the present case, shows clearly that the letter of White & Co. does not preclude them or their assignees, from showing the truth, as against the present defendant. The letter was not addressed to him, nor to Vallette, at whose instance, and for whose benefit the execution was levied. It was merely instructions to Huyles & Bash, and its purpose did not contemplate the exhibition of it to the creditors of the railroad company. It came to 'Vallette’s knowledge, only by his own industrious research. The information which he thus acquired, and relied on in his subsequent action, imposed no obligations of any kind, on White & Co., and conferred no rights upon Vallette either as against White & Co. or the railroad company. As against White & Co. his right to levy on the iron would depend upon the actual state of facts, and not upon information which he received from others in regard to the facts.

But supposing the fact to have been, as there was evidence tending to prove, that this letter of White & Co. was inadvertently, or through mistake, couched in terms which would not fully and truly express the intention of the writers, or which would represent the facts of the case in a false light, and justify the belief on the part of the consignees, that White & Co. had no further claim on the iron; and the consignees, being thus misled by the negligence or mistake of White & Co., gave notice to the agents of the railroad company that the iron would be thenceforth held for them, would these facts operate in law, as a constructive transfer of the possession of the iron from White & Co. to the railroad company ? Would they sc operate, irrespective of the intentions of the parties to the transfer, and the contracts subsisting between them ?' Would such mistake give the railroad company a right to claim \ possession of a character inconsistent with the express terms of the contract which the letter was intended to carry out ? I think it clear, that notwithstanding the improvident or mistaken language of the letter, the railroad company could honestly assume only such possession, and for such purposes, as would be consistent with the terms of its contract with White & Co. If that contract made the company a mere bailee, for the purposes of shipment and storage in the name of White & Co., it could not honestly take a possession of a different character. The iron, when levied on, was in the actual possession and custody of the consignees, and I know of no rule of law, which would cast upon the railroad company a constructive possession, of an unqualified character, which it could not under the circumstances honestly assume.

But if the railroad company could claim no advantage from this mistake,- do its creditors occupy any better position than itself? Except in cases of fraud, a creditor can, in general, and as against third parties, assert only the rights of his debtor. The lien of his levy can not go beyond the property of his debtor. And where the liability to levy depends upon a question of possession, no good reason is perceived for permitting a mere mistake, to work a constructive change of possession, and to give to that possession a character, in favor of the creditors, which the debtor himself would have no right to claim for it.

We think the district court erred in giving to the letter of White & Co., with the subsequent notice given by the parties who received it, to the railroad company, an absolute legal effect as a relinquishment of the possession of the iron’by White & Co., which would render the same liable to be levied on by the creditors of the railroad company, irrespective of any mistake of facts under which the letter might have been written, or of the actual rights of the parties as defined by subsisting contracts.

The judgment of the district court will therefore be re« versed, and the cause remanded.

Peck, C J., and Gtiolson and Brinkerhoee, J J., concurred. Ranney, J., did not sit in the case.  