On the sixteenth day of December, 1875, one E. P. Childs being indebted to the plaintiff herein in the sum of $170.00, drew a draft upon C. D. G., of St. Louis, for that amount, payable in thirty days from date, and delivered the draft so made by him to the plaintiff, who on the same day delivered said draft to the State National Bank for collection.

On or about the seventh day of January, 1876, the plaintiff was informed by Owen, the president of the bank, that the draft had been accepted and paid. The plaintiff thereupon drew out of the bank of defendant the sum of $105.00, and on the twelfth and fifteenth days of that month the balance of said draft.

On or about the tenth day of January, 1876, and apparently after the payment of the $105.00 to the plaintiff, Childs, who was then insolvent, called at the bank and made inquiry in regard to the draft, and was informed that it had been accepted and paid, at which he expressed some surprise that it should have been paid before maturity. He states in his testimony that he was anxious to protect the draft and had the money *108at that time to pay it in ease of its non-acceptance or non-payment, and so notified Owen. On the nineteenth of January, 1876, the draft was returned unpaid, and notice of its non-payment given to the plaintiff and Ohilds.

In an action by the bank to recover the amount paid to De Nayer on said draft, he answered, setting up the inquiry and offer of Childs, above set forth, as a defense. The court below directed the jury to find in favor of the bank. A verdict having been rendered in favor of the bank for §170.00, with interest from January nineteen, 1876, judgment was rendered thereon, to review which the defendant brings the cause into this court by petition in error.

The only question for our consideration is, does the matter pleaded and proved by the plaintiff in error constitute a defense to the action ?

In Piper v. Gilmore, 3 Am., Law Reg., N. S. 584, certain notes payable to A. were by him deposited with B., as security for his indebtedness to B. C., being anxious to collect a claim held by him against A., made inquiry of B. as to the notes, without informing him of the purpose of the' inquiry. B. replied that the notes belonged to A. The money due on the notes was taken by C. in an attachment at the time of its payment. It was held that these facts did not constitute an estoppel in pais to prevent B. from claiming the money due him upon the notes.

The rule is well settled that a statement, to become binding upon the party making it, must be made to a party seeking information for the protection of his rights, and he must have acted upon it before it will become conclusive upon the party making it. Had the plaintiff in error, in consequence of the mistake of the bank, released sureties upon the obligation, or had he been induced to change his relations to Childs, so that *109the claim would be lost in consequence thereof, as between two innocent parties the bank would be required to sustain the loss. But nothing of the kind is pleaded or attempted to' be proved. As it is clear that the plaintiff has lost no right, nor been induced to change his condition in consequence of the mistake of the bank, the testimony offered by him constitutes no defense to the action, and the court therefore did not err in directing a verdict for the bank. The judgment is therefore affirmed.

Judgment aeeirmed.