the person signing is bound for the amount inserted in the note to one having no notice of the facts, although it was understood that the sum should be less than that inserted.38 As a summary of the doctrine relative to the execution of negotiable instruments in blank the following extract from an opinion by Whitehouse, J., in the case of Market and Fulton National Bank v. Sargent :3 "It is well settled and familiar law that, if one affixes his signature to a printed blank for a promissory note and intrusts it to the custody of another for the purpose of having the blanks filled up and thus becoming a party to a negotiable instrument, he thereby

blank for the payee with his own name are: Weston v. Myers, 33 Ill. 424; Wilson v. Kinsey, 49 Ind. 35; Jennings v. Bass, 88 Ky. 397, 11 S. W. 293, 21 Am. St. Rep. 344; Dunham v. Clogg, 30 Md. 284; Schoaler v. Tilden, 71 Mo. 580; Aiken v. Cathcart, 3 Rich. L. (S. C.) 133, 45 Am. Dec. 764; Seay v. Tennessee Bank, 3 Sneed (Tenn.), 558, 67 Am. Dec. 579; Brummel v. Enders, 18 Gratt. (Va.) 873; Frank v. Lilienfield, 33 Gratt. (Va.) 377; Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486.

38. Insertion of amount.-The following cases are cited as authorizing the insertion of the amount for which the instrument is given when left blank:

Ohio. Schryver v. Hawkes, 22 Ohio St. 308; Selser v. Brock, 3 Ohio St. 302.

Tennessee.-Grissom v. Fite, 1 Head, 332; Frazier v. Gains, 2 Baxt. 92.

Virginia. - Jordan V. Nielson, 2 Wash. 164.

Wisconsin.- Johnson Harvester Co. v. McLean, 57 Wis. 258, 15 N. W. 177.

In New York it has been held that a party who intrusts another with his acceptance in blank is responsible to a bona fide holder, even though the acceptance has been filled in for a greater amount than that which has been fixed as a limit by the acceptor. Van Duser v. Howe, 21 N. Y. 531.

Where a defendant indorsed a promissory note for the maker's accommodation, and delivered it to the maker with the time and place of payment in

Alabama.- Brahan v. Ragland, 3 Stew. 247; Roberts v. Adams, 8 Port. 297, 33 Am. Dec. 291. Connecticut.- Norwich Bank v. blank, it was held that the maker had Hyde, 13 Conn. 279.

Illinois. Young v. Ward, 21 Ill. 223; Yocum v. Smith, 63 Ill. 321, 14 Am. Rep. 120.

Indiana.- Eichelberger v. Old Nat. Bank, 103 Ind. 401, 3 N. E. 127.

Kentucky. Smith v. Moberly, 10 B. Mon. 266, 52 Am. Dec. 543; Jones v. Shelbyvile, etc., Ins. Co., 58 Ky. 58; Smith v. Lockridge, 8 Bush, 423; Woolfolk v. Bank of America, 10 Bush, 504.

Maine.-Market & Fulton Nat. Bank v. Sargent, 85 Me. 349, 27 Atl. 192, 35 Am. St. Rep. 376.

Mississippi.- Johnson v. Blasdale, 9 Miss. 17, 40 Am. Dec. 85; Fanning v. Farmers & Merchants' Bank, 16 Miss. 139.

Missouri.- Tumilty V. Missouri Bank, 13 Mo. 276; Mackey v. Basil, 50 Mo. App. 199.

the implied authority to fill in the blanks by inserting any time or place he chose, but that he was not authorized to insert the words "with interest," as that was not necessarily within the implied intent of the delivery. McGrath v. Clark, 56 N. Y. 34.

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A note intended to be made for $800 was indorsed by the payee for the maker's accommodation, and delivered to him. By mistake the words, "hundred dollars," were omitted, so that it purported to be a note for eight It was held that the maker had implied authority to insert the words 'hundred dollars." Boyd v. Brotherson, 10 Wend. (N. Y.) 93. See also Ogden v. Pope, 18 N. Y. Supp. 140; Mitchell v. Culver, 7 Cow. (N. Y.) 336.

39. 85 Me. 349, 27 Atl. 192, 35 Am. St. Rep. 376.

confers the right, and such instrument carries on its face an implied authority, to fill up the blanks and complete the contract at pleasure, as to names, terms, and amount, so far as consistent with its printed words. As to all purchasers for value without notice, a person to whom a blank note is thus intended must be deemed the agent of the signer, and the act of perfecting the instrument is deemed the act of the principal. An oral agreement between such principal and agent limiting the amount for which the note shall be perfected cannot affect the rights of an indorsee who takes the note before maturity for value, in ignorance of such agreement, with a different amount written in it."

b. Statutory provision.— The Negotiable Instruments Law contains the following, which, as will be seen, is substantially a statutory declaration of the general rule:

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46

"Where the instrument is wanting in any material particular, "the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on "a blank paper delivered by the person making the signature in "order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for 66 any amount. In order, however, that any such instrument, "when completed, may be enforced against any person who became "a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a "reasonable time. But if any such instrument, after completion, "is negotiated to a holder in due course, it is valid and effectual "for all purposes in his hands, and he may enforce it as if it had "been filled up strictly in accordance with the authority given and 99 40 within a reasonable time."

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c. Incomplete instrument not delivered.- The Negotiable Instruments Law contains the following: "Where an incomplete "instrument has not been delivered it will not, if completed and negotiated, without authority, be a valid contract in the hands of "any holder, as against any person whose signature was placed "thereon before delivery." "1 The statute evidently declares the general rule. It is a well-established rule that in order to make an incomplete instrument, which has been filled up contrary to

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40. Neg. Inst. L. (N. Y.), § 33. For the same provisions as the above the same section in the statutes of section. other States see Appendix.

The English Bills of Exchange Act, 1882 (§ 20), contains substantially

41. Neg. Inst. L. (N. Y.), § 34. See Appendix. As to what constitutes delivery, see next section.

instructions, available in the hands of a holder in due course, the instrument must have been delivered.42

46. Delivery.

a. Statutory provision.- The Negotiable Instruments Law contains the following provision:

"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,

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real distinction. The defendant here has not voluntarily put into any one's hands the means, or part of the means, for committing a crime.

42. Filling blanks in instrument not yet delivered.-The leading English case illustrating this proposition is that of Baxendale v. Bennett, L. R., 3 Q. B. D. 525, 4 Eng. Rul. Cas. 637. "But it is said that he has done The defendant there signed a blank ac- so through negligence. I confess I ceptance and gave it to one Holmes to think he has been negligent; that is fill in his name and then to use it for to say, I think if he had had this the purpose of raising money on it. paper from a third person, as a bailee Holmes sent the blank acceptance back bound to keep it with ordinary care, to defendant without using it. It was he would not have done so. But then stolen from the possession of the de- this negligence is not the proximate fendant by some person not a servant or effective cause of the fraud. A of his, filled up by a different person crime was necessary for its completion. from him to whom the original ac- Then the Bank of Ireland v. Evans' ceptance was given and to whom he Trustees (5 H. L. C. 389) shows unhad returned it. On these facts the der such circumstances there is no estrial court held that the defendant had been guilty of negligence and was, therefore, liable upon the bill to the plaintiff, who was a bona fide holder. But this judgment was reversed by the appellate court on the ground that the defendant, while he might have been guilty of negligence, should not be held liable for a loss occasioned, as it was, by the commission of a crime. The instrument. So where bonds negotiacourt (per Bramwell, L. J.) said: ble in form were in an imperfect con"It must be admitted that the cases dition, in that they did not state where of Young v. Grote (4 Bing. 253), and they were to be paid or in what naIngham v. Primrose (7 C. B. N. S.) tional money, nor the principal nor the 82), go a long way to justify this interest, the filling out of such words judgment; but in all those cases, and by one without authority is not availin all others where the alleged maker able as against the corporation, even or acceptor has been held liable, he in the hands of a bona fide holder." has voluntarily parted with the instru- Ledwich v. McKim, 53 N. Y. 307. ment; it has not been got from him In Michigan it was said by Chrisby the commission of a crime. This, tiancy, J., in the case of Burson v. undoubtedly, is a distinction, and a Huntington, 21 Mich. 415, 4 Am. Rep.

toppel. It is true that was not the case of a negotiable instrument; but those who complained of the negli gence were the parties immediately affected by the forged instrument."

In New York it has been said: "It is clear that there must be some authority expressed or implied by an actual delivery for future use of the

"and not for the purpose of transferring the property in the in66 strument. 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 presumed. "And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.'

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" 43

In treating this question, it will be convenient to divide the subject into the following subdivisions: (1) the necessity of delivery; (2) what constitutes delivery; (3) mode of delivery; and (4) presumption of valid delivery.

b. Necessity of delivery.— It is an elementary rule that an instrument is not complete and effectual until it has been delivered, or until that has been done which is legally equivalent to a delivery. An actual or constructive delivery, being the final act in the execution of a note, is as essential to impart validity to the paper as is the signature of the maker. Until that is done it is a nullity. The delivery of a negotiable instrument is an essential and integral part of its execution.45 Such an instrument has no

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497, that: "The wrongful act of a thief or a trespasser may deprive the holder of his property in a note which has once become a note or property, by delivery, and may transfer the title to an innocent purchaser for value. But a note in the hands of the maker before delivery is not property, nor the subject of ownership, as such; it is, in law, but a blank piece of paper. Can the theft or wrongful seizure of this paper create a valid contract on the part of the maker against his will where none existed before? There is no principle of the law of contracts upon which this can be done, unless the facts of the case are such that, in justice and fairness, as between the maker and the innocent holder, the maker ought to be estopped to deny the making and delivery of the note."

43. Neg. Inst. L. (N. Y.), § 35. For the same section in statutes of other States see Appendix.

44. Purviance v. Jones, 120 Ind. 162, 21 N. E. 1099, 16 Am. St. Rep. 319. The following cases may be cited as sustaining this proposition:

United States.— Wells-Fargo Co. v. Van Sickle, 64 Fed. 944.

Illinois.— King v. Flemming, 72 Ill.

21, 22 Am. Rep. 131; First Nat. Bank v. Strang, 72 Ill. 559.

Indiana.- Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469; Mahon v. Sawyer, 18 Ind. 73. Iowa.- Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331. Maryland.-Deveries v. Shumate, 53 Michigan. Burson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497. Minnesota.- Stein v. Passmore, 25 Minn. 256.

Md. 211.

Missouri.- Carter v. McClintock, 29 Mo. 464; Fogg v. School District of Sedalia, 75 Mo. App. 159.

New York Cowing v. Altman, 71 N. Y. 435, 27 Am. Rep. 70; Gale v. Miller, 54 N. Y. 536; Marvin v. McCullum, 20 Johns. 288; Hall v. Wilson, 16 Barb. 548.

Wisconsin.- Chipman v. Tucker, 38 Wis. 43, 20 Am. Rep. 1.

45. Mitchell v. Connolly, 13 Ark. 414; Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469; Russell v. Whipple, 2 Cow. (N. Y.) 536; Burbank v. French, 12 Wis. 376. A negotiable instrument stolen from the maker before it has become effective as an obligation by actual or con

legal inception until it is delivered to some person as an evidence of indebtedness.46 Until delivery, a contract arising from the negotiable instrument may be revoked, and it has been held that although delivery may be made through the mails, there is a right of stoppage in transitu which applies to commercial paper as well as to merchandise in transitu. If a promissory note, signed by the maker, be by him placed in the hands of his agent for delivery to the payee, whether conditional or not, as long as it remains in the hands of the agent it is undelivered and may be recalled by the maker. 48

c. What constitutes delivery.—The Negotiable Instruments Law defines delivery as a "transfer of possession, actual or constructive, from one person to another." 49 It is not always easy to determine the acts which constitute a delivery by construction of law. It is not indispensable that the delivery of a negotiable instrument should be made directly to the payee; if it is made to