71 N.W. 135 | N.D. | 1897
This action was in claim and delivery for the possession of three certain promissory notes that were in the hands of the defendant bank, and the title to which is claimed by the plaintiff. The case was tried to the court without a jury. The defendant prevailed. The case is brought here for trial de novo. We do not find it necessary, in the decision of the case, to follow the wide line of argument made by counsel. The facts, as
We shall not, in this opinion, enter into any discussion whatever as to the respective rights of plaintiff and Spearing. As we view it, the case stands in this condition: At the time of the delivery of the threshing rig, Spearing re fused — whether rightly or not, we do not say — to execute and deliver his notes; and, as we have seen, the notes, after being signed, were placed in the hands. of the bank. Counsel for appellant designate this as placing the notes in escrow. We do not so understand the transaction. Where documents are placed in escrow, the grantor or maker loses all control over them. They are simply left to await the happening of some event, or the fulfillment of some condition, the performance of which rests entirely with the other party. The grantor or maker cannot recall the escrow, nor can he in any manner control the document. 6 Am. & Eng. Enc. Law, p. 863; James v. Vanderheyden, 1 Paige, Ch. 385; Campbell v. Thomas, 42 Wis. 437; Fitch v. Bunch, 30 Cal. 209; State v. Thatcher, 41 N. J. Law, 403; Stinson v. Anderson, 96 Ill. 373; Wellborn v. Weaver, 63 Am. Dec. 235. The undisputed evidence shows that such was not the case in this instance. The notes, as both parties swear, were not to be delivered unless Spearing so directed. Practically, then, the notes remained in Spearing’s control, to the same extent that they would have been had he signed them and kept them in his own personal possession. There was no delivery of the notes, no passage of title thereto. This refusal of Spearing may have been unwarranted, and he may have subjected himself to an action for damages by said refusal. But the fact that plaintiff had a legal claim upon Spearing for the notes was not of itself sufficient to vest the title to the notes in the plaintiff. It is one of the plainest and most elementary principles of law that there can exist, as between the parties, no valid promissory note without execution and delivery. It follows, therefore, that as plaintiff had no title to the notes, and the same were in the possession of the defendant as agent for the party
Affirmed.