58 So. 757 | Ala. Ct. App. | 1912
It is evident from the express language of section 4973 of the present Code that as between the parties and all others not bona fide holders of negotiable instruments the delivery of such an instrument may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument. This section is as follows: “Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument.- But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him, is conclusively
Plea 2, in express terms, states that the plaintiff did not occupy the position of a bona fide purchaser for value of the note sued on in due course, and, construed intelligently, the plea brings the instrument directly within the operation of the above statute. In our opinion, plea 2, construed most strongly against the pleader, states with sufficient clearness that the note was delivered to the payee is escrow, and that the title to the instrument had never vested in the payee. We are therefore of the opinion that the trial court committed no error in overruling plaintiff’s demurrer to said plea.
The above being true, the judgment of the court below must be affirmed.
Affirmed.