Mr. Justice Williams
delivered the opinion of the court. July 2d 1874.
*91The verdict of the jury establishes the fact that the defendant was not induced to sign the bond by false representations or misstatements of the plaintiff’s husband and agent. He was, therefore, liable as surety for the amount of the bond, though it was not signed by one of the co-sureties named therein, unless its delivery was conditional, and only to become absolute upon obtaining his signature. Its possession by the plaintiff was primfi facie evidence of its actual delivery, and the burden of showing that it was delivered as an escrow was on the defendant. Whether its delivery was absolute, or conditional, was a question of fact for the determination of the jury, and if it was submitted to them with proper instructions the judgment must be affirmed; otherwise it must be reversed. The court charged the jury “ that the plaintiff is entitled to recover the amount due on this obligation from Warfel, the defendant in this action, unless you find from all the evidence in the cause, that * * * Warfel, when he executed the bond and handed it to Frantz, expressly stipulated that Frantz should not deliver the bond to Mrs. Frantz, to whom it is made payable, until the names of Christian Scheetz and Henry Scheetz were obtained to it, and Mr. Frantz so promised; in such ease, until the condition was performed, there could be no legal delivery, and it would not be the bond of Warfel.” And in answer to the defendant’s sixth point the court said: “ The handing of the bond, after signing it, by Warfel to Frantz, completed its delivery, and in the absence of fraud on the part of Frantz in obtaining it, or an express stipulation on the part of Warfel assented to by Frantz, that it should not be given to Mary Ann Frantz, to whom it is made payable, until the names of Christian and Henry Scheetz were signed to it, made the contract expressed in the bond perfect in reference to Warfel, the defendant, and it may be enforced against him.”
Undoubtedly it was not an absolute but a conditional delivery of the bond, if Warfel, when he handed it to Frantz, expressly stipulated, and Frantz promised, that it should not be delivered to his wife until the names of Christian and Henry Scheetz were obtained to it. But what if Frantz made no such promise ? Was there then a good and valid delivery of the bond ? If the defendant signed and handed it to Frantz upon the express condition that it was not to be delivered to his wife until the names of Christian and Henry Scheetz were obtained to it as co-sureties, then Frantz had no right to treat it as an absolute delivery, whether he expressly assented to the condition or not. It did not require his assent in order to make such a delivery conditional; and if it did, his assent would be implied from his acceptance of the bond. The defendant was under no obligation to sign it as surety. It was a voluntary act on his part, and he had the undoubted right to insist, as a condition precedent to its actual delivery, that it should be *92signed by Christian and Henry Scheetz as co-sureties: and if he did, no liability would arise until the condition was complied with. But the jury may have inferred from the instructions of the court that such a condition would not have been binding unless it was expressly assented to by Frantz, and in this aspect of the case both the charge and the answer to the defendant’s sixth point had a direct tendency to mislead them. The court should have affirmed the point without qualification and instructed the jury in accordance therewith that if the defendant handed the bond to the plaintiff’s husband with the understanding that he should procure to it the names of Christian and Henry Scheetz, it was only a conditional delivery, and unless such condition was complied with, its payment cannot be enforced.
The other assignments are not sustained, and there is nothing in them that calls for discussion.
Judgment reversed, and a venire facias de novo awarded..