Mr. Justice Burnett
delivered the opinion of the court.
Only a question of law is involved in this suit, for the defendant by his motion admits the truth of the testimony, but says that it is not sufficient to sustain any decree against the defendant. The record discloses that about February 20, 1911, the plaintiff, a resident of *373Klamath Falls, was the owner of the real property in question, which is situated in Multnomah County. Some real estate agency in Portland, Oregon, had procured a purchaser for the premises, and so notified the plaintiff, who on the date last above mentioned addressed a letter to the Mt. Scott Bank at Lents, Oregon, as follows:
“Gentlemen: Inclosed herewith I hand you warranty deed of myself and wife to Warren Kilborn, also a certain deed from O. R. Addition and wife to me for the same property described in the deed first mentioned. I send you the deeds mentioned pursuant to instructions received by me from Bright Realty Co., Portland, Oregon, the agent who negotiated this sale. You will observe that the consideration stated in the deed made by myself and wife is ten dollars. That however is not the true consideration herein. The true consideration is $625 which sum must be paid to you before the deed is delivered and you are hereby instructed not to deliver the deed I send you herewith or either of them until the consideration amounting to $625 is paid you for my use. When you receive that sum then deliver the deeds I send you. The Bright Realty Co. of Portland, Oregon, who negotiated this sale, is to receive a commission of five per cent out of the consideration of $625. You may pay such commission out of the consideration and send the balance of $625 to the First Trust and Savings Bank of Klamath Falls, Oregon, to be placed by such bank to my credit. Kindly attend to this matter according to instructions given you as soon as possible, and oblige
“Yours truly,
“W. L. Sharp.”
Prior to February 27, o1911, the defendant had deposited in the Mt. Scott Bank money in excess of $625, which had not been repaid to him. Having received notice of the arrival of the deed, he went on that date to the bank and gave to the officer in charge of the institution his
check in words and figures as follows:
Lents, Oregon, Feb. 27, 1911. No.-
MOUNT SCOTT BANK
Pay to the order of Mount Scott Bank - - - - - - $593.75
Five hundred ninety three ny - -- -- -- - Dollars
Warren Kilborn.
*374The amount of the check, it will be noticed, was $625, less 5 per cent presumably deducted for the real estate agent’s fee. The bank took the check, and delivered the deed to the defendant, who placed it on record. The check was never charged to Kilborn’s account, nor sent to the plaintiff, and no money whatever was paid by any one to plaintiff on account thereof or of the purchase price. Neither was he given credit by the bank in the transaction. The check remained in the bank until it closed its doors and failed on March 3, 1911.
1, 2. It is needless to deal in refinements about whether the deed was an escrow, or whether the bank was merely the agent of the grantor named therein. In the first place the delivery of the deed in violation of the terms of the escrow passed no title, and in the other case if the agent delivered the deed contrary to his instruction it would still pass no title. The only evidence of the agency of the bank as the representative of the plaintiff is found in the letter quoted above, and, this being established, the scope of the agency is a question of law for the court. Baker v. Seaweard, 63 Or. 350 (127 Pac. 961).
3. In determining the legal effect of this letter, we must hold that the bank could not rightfully deliver the deed so as to bind the plaintiff unless it had first received the money called for by the instructions of the letter. At his own peril, the defendant dealt with the bank as the agent of the plaintiff. Reid v. Alaska Packing Co., 47 Or. 215 (83 Pac. 139) ; Rumble v. Cummings, 52 Or. 203 (95 Pac. 1111) ; Baker v. Seaweard, 63 Or. 350 (127 Pac. 961). Under the circumstances, giving to the bank a check drawn to its own order was not payment to the plaintiff, and the bank had no authority to receive that instrument for that purpose as binding on the plaintiff. The bank was indebted to the defendant in a sum of money larger than that required as a consideration for the deed. The legal effect of the giving to the bank the *375check mentioned was a direction by the defendant to his own debtor to pay the debt of the defendant to the grantor named in the deed. It was at best an abortive novation inaugurated by the defendant, in which was wanting one requisite essential to bind the plaintiff, namely, the consent of the plaintiff himself. He was not named as the payee of the check, and, being a stranger to that instrument in every respect, it would not affect him in any manner. In substance, the defendant made the bank his own agent to pay the money to the plaintiff, and must be bound by the failure of the agent thus appointed. So far as payment is concerned, therefore, the defendant stands in the same situation as if the plaintiff had personally demanded of him the payment of the money and he had refused it. The following authorities are instructive on the question of payment by check: Black v. Sippy, 15 Or. 574 (16 Pac. 418) ; Johnston v. Barrills, 27 Or. 251 (41 Pac. 656: 50 Am. St. Rep. 717) ; Stringham v. Mutual Ins. Co., 44 Or. 447, 459 (75 Pac. 822) ; Steel v. Island Mill Co., 47 Or. 293, 297 (83 Pac. 783) ; Kiernan v. Kratz, 42 Or. 474, 484 (69 Pac. 1027: 70 Pac. 506). That the delivery of a deed, contrary to the conditions annexed by the grantor when placing it in the custody of a third party, conveys no title the following authorities are applicable: Tyler v. Cate, 29 Or. 515 (45 Pac. 800) ; Gaston v. City of Portland, 16 Or. 255 (19 Pac. 127) ; Bradford v. Durham, 54 Or. 1 (101 Pac. 897: 135 Am. St. Rep. 807) ; De Bow v. Wollenberg, 52 Or. 404, 423 (96 Pac. 536: 97 Pac. 717) ; Hilgar v. Miller, 42 Or. 552 (72 Pac. 319). The act of giving up the deed without actual payment of the money, under the circumstances disclosed by the testimony, was not a delivery, and passed no title to the realty.
The decree of the circuit court is reversed, and one entered here in accordance with the prayer of the complaint. Reversed: Decree Rendered.