40 Wis. 661 | Wis. | 1876
The ruling of the court rejecting all testimony under the answer is equivalent to an order sustaining a general demurrer thereto. It is an adjudication that the answer does not contain facts sufficient to constitute a defense to the action. If it states a defense, the ruling is erroneous and fatal to the judgment. We have no doubt whatever that the answer states a complete defense to the action, and that the testimony offered to prove the allegations thereof should have been received. The note was not left with Parmelee, the agent of the plaintiff, as an escrow. On the contrary, the defendant’s testator retained the absolute control of the note, and the right to recall it if he chose to do so. Such a deposit has none of the essential features of a delivery in escrow, and hence we are not called upon to determine the legal effect of the delivery of a note in escrow to the agent of the payee. There was no delivery of the instrument, and hence it never had an inception or legal existence as the note or obligation of the testator. It remained mere waste paper, just as it would have been had the testator kept it in his pocket instead of leaving it with Parmelee. The fact that Parmelee was the agent of the plaintiff is of no importance. Were the plaintiff a natural person, and had the testator left the note with such person under the same circumstances, it would not be a delivery, and would confer no right of action. Had the paper been put in circulation, and were the plaintiff a bona fide holder thereof for value, before due, we would or might have to determine whether or not the testator had been guilty of negligence in the premises. But we have no such question in this action. These views are abimdantly sustained by the following cases: Walker v. Ebert, 29 Wis., 194; Kellogg v. Steiner, id., 626; Butler v. Carns, 37 id., 61; Thomas v. Watkins, 16 id., 549;
By the Covert. — Judgment reversed, and a new trial awarded.