instrument would now, prima facie, be heid to be an indorser, it not appearing that he intended to sign in any other capacity.21 The fact that one signs a bill or note by an assumed or adopted name, as distinguished from his real name, is not a defense to the note, if the act of signing is not a forgery, and the rights of third persons are not prejudiced thereby.22 The Negotiable Instruments Act provides that: "Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability."23 Such act further provides that "A signature by 'procuration' operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority." So, where one adds to his signature words which indicate that he signs in a representative capacity, he can not be held personally liable on the instrument, if the execution was duly authorized.25 And, where the directors of a corporation sign a note without designating that they sign as directors, they will be held to have signed as individuals and not as officers of the corporation.26 If a note is properly signed, it is prima facie proof of its due execution.27 And the question of due execution of an instrument is usually a question of fact, and not of law.28 § 77. Necessity of delivery.-The Uniform Negotiable Instruments Law provides that "Every contract on a negotiable instru Mich. 521, 85 N. W. 1075; Pearl v. 21 Negot. Inst. Law, art. "Liabilities of Parties", § 63. See ch. 2. 22 Singer Mfg. Co. v. Paul, 48 Ind. 98; Karoly Elec. &c. Co. v. Globe Sav. Bank, 64 Ill. App. 225; Melledge v. Boston Iron Co., 5 Cush. (Mass.) 158, 51 Am. Dec. 59; Jewett v. Whalen, 11 Wis. 124. 23 Negot. Inst. Act, art. "Form and Interpretation", § 20. See Werner v. Emerson Hotel &c. Co., 192 N. Y. S. 273. 24 Negot. Inst. Act, art. "Form and Interpretation", § 21. 25 First Nat. Bank v. Jacobs (W. Va.), 102 S. E. 491. 26 Flick v. Jordan (Ind. App.), 129 N. E. 42. 27 Commercial Security Co. v. Donald Drug Co., 112 S. Car. 457, 100 S. E. 359; Goree v. Uvalde Nat. Bank (Tex. Civ. App.), 218 S. W. 620. 28 Hughes v. Gardner, 144 Ark. 282, 222 S. W. 43; Crow v. Winston (Mo. App.), 219 S. W. 91. ment is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto."29 Thus, as a general rule, delivery is essential to give legal existence and effect to commercial paper,30 and this implies acceptance by the payee. 31 However, delivery of an instrument is largely a matter of intention.32 So, where an executrix, at the time of executing her will, executed a note to another by way of provision for him and delivered the note to the person named in the bill as executor, it was held a valid delivery to the payee of the note. 33 But, where a note signed by a decedent is found after his death among his papers, the note has no legal effect in the absence of a showing that it was ever delivered. 34 And, in case of a promissory note, it takes effect from the time of its delivery, and not from its date; for, until the maker parts with its possession and control, he may cancel it, or dispose of it as he pleases. 35 So, indorsement and delivery is essential to give legal effect to a bill or note drawn or made to the order of the drawer or maker.36 But 29 Negot. Inst. Act, art. "Form and Interpretation", § 16. Ard v. Bowie, 125 Ark. 169, 187 S. W. 1066; City Nat. Bank v. Morrisey, 97 Conn. 480, 117 Atl. 493; Reese v. Fidelity Mut. Life Assn., 111 Ga. 482, 36 S. E. 637; Massachusetts Nat. Bank v. Snow, 187 Mass. 159, 72 N. E. 959; Hillsdale College v. Thomas, 40 Wis. 661. 30 Cannon v. Dillehay, 17 Ala. App. 294, 84 So. 549; People v. Casson, 27 Cal. App. 23, 148 Pac. 810; Atwood v. Atwood, 86 Conn. 579, 86 Atl. 29, Ann. Cas. 1914B, 281; Reese v. Fidelity Mut. Life Assn., 111 Ga. 482, 36 S. E. 637; Gordon v. Adams, 127 I11. 223, 19 N. E. 557; Hunter v. Ft. Wayne First Nat. Bank, 172 Ind. 62, 87 N. E. 734; Devries & Co. v. Shumate, 53 Md. 211; Stein v. Marris v. Passmore, 25 Minn. 256; Butler, 138 Mo. App. 378, 122 S. W. 377; First State Bank v. Kelly, 30 N. Dak. 84, 152 N. W. 125, Ann. Cas. 1917D, 1044; Stockton v. Turner, 30 N. Dak. 641, 153 N. W. 275; In re Bean, 264 Pa. 131, 107 Atl. 671; Isett v. Maclay, 265 Pa. 165, 108 Atl. 610; Wright v. Smith, 81 Va. 777; Negotiable Instruments Law of New York, 35, which presumes a valid delivery by all prior parties of an instrument in the hands of a holder in due course, only applies to completed instruments. Holzman v. Teague, 158 N. Y. S. 211. 31 People v. Casson, 27 Cal. App. 23, 148 Pac. 810; Live Stock Bank v. Hise, 150 Minn. 301, 185 N. W. 498 implied acceptance). Delivery and acceptance are essential to pass title to a note. City Nat. Bank v. Morrissey, 97 Conn. 480, 117 Atl. 493. Acceptance is necessary to complete the delivery of a note. Baggish v. Offengand, 97 Conn. 312, 116 Atl. 614. 32 Lawrence v. Scurry, 187 Iowa 1055, 175 N. W. 22. 33 Lawrence v. Scurry, 187 Iowa 1055, 175 N. W. 22. 34 Shriver v. Danby (Del. Ch.), 113 Atl. 612. 35 Burr v. Beckler, 264 Ill. 230, 106 N. E. 206, L. R. A. 1916A, 1049, Ann. Cas. 1915D, 1132. 36 Stauffer v. Curtis, 198 Mass. 560, 85 N. E. 180; Yonkers Nat. Bank v. where a note is indorsed to the effect that it is given in connection with a contract for a deed to certain land, the note is a complete legal instrument in itself, and was not a part of the land contract so as to require the latter's delivery also to give effect to the note.37 Redelivery of a promissory note to the payee, or his executor or administrator, is necessary, where, after the original delivery, the note is signed by a third person, in order to render the note binding as to such third person.38 § 78. Sufficiency of delivery.39-The Negotiable Instruments Act provides that: "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, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all prior parties 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."40 There can be no more effective delivery of a bill or note than delivery to the payee in person. However, such procedure is not essential to a valid execution of such paper. Delivery will be sufficient if made to the agent of the payee. So, there may be a Mitchell, 156 App. Div. 318, 141 N. Y. 37 Lachenmaier v. Hanson, 196 Fed. 38 Williams v. Williams, 67 Mo. 661. 39 For conditional delivery or delivery in escrow, see Post. ch. 15, entitled "Effect of Conditions or Agreements." 40 Negot. Inst. Act, art. "Form and Interpretation", § 16. 41 American Auto Co. v. Perkins, 83 Conn. 520, 77 Atl. 954; Rule v. Carey, 178 Iowa 184, 159 N. W. 699. Delivery was sufficient where a husband in 41 debted to his wife's sister, made a note to the sister for such indebtedness and delivered the note to his wife for the sister, although there was no express directions to pass the note on to the sister, who had knowledge of the facts, and the wife retained the note until after the death of the husband. Rule v. Carey, 178 Iowa 184, 159 N. W. 699. And delivery of a note to the payee's husband, with her knowledge and consent, to be held by him as her agent is legal delivery. Crosier v. Crosier, 215 Mass. 535, 102 N. E. 901. legal delivery of a note to the payee, notwithstanding the maker still has potential possession of it, if such possession is that of agent or trustee of the payee. 42 However, where a note was made out and signed by an investment attorney to his client after receiving her check for a sum of money, and he informed her that he had executed the note, and that she could have it any time, and the note was found after his death in a pigeonhole in the vault of his office, the question of delivery of the note was one of fact for the jury.43 But. there is no legal delivery to the payee where the drawer of a check gives it to his agent with instructions to deliver same to the payee ;44 nor by placing notes and deeds in the safe of the maker's lawyer, without instructions and without surrendering control by the owner, does not constitute delivery of them;45 nor the leaving of a check on the desk of the payee's clerk in the presence of the clerk, and with his knowledge, does not amount to a legal delivery unless it was actually received by the clerk or the payee.46 However, delivery of an accommodation note to the attorney of the accommodated party for delivery to the lender of money advanced on the note is a sufficient delivery to bind the maker. 47 And delivery of notes purchased from a bank was sufficient, where they were placed in the purchaser's safety deposit box in the bank, to which the cashier had access for the purpose of collection.48 But there is no legal delivery 42 An agent entrusted with his principal's money, made a note to the principal and placed it in a box with other papers of the principal and it remained there until the death of the agent, and was held a legal delivery to the principal. Indiana Trust Co. v. Byram, 36 Ind. App. 6, 72 N. E. 670, 73 N. E. 1094. And there is sufficient delivery where a husband. indebted to his wife, executed a note to her therefor and with her knowledge and consent, put it in a safe for safe keeping. Victor v. Swisky, 87 Ill. App. 583. So, where a banker, in the presence of his daughter, made out and signed a note to her, and placed it in an envelope with other notes held as collateral security by her, and wrote her name on the envelope with written statement thereon that the notes were held by her as collateral security, there was constructive delivery of the notes to her, although he held them as her banker for safe keeping. In re Reeves, 111 Iowa 260, 82 N. W. 912. 43 Lerch v. Bard, 162 Pa. St. 307, 29 Atl. 890. 44 Barry v. Mut. Life Ins. Co., 211 Mass. 306, 97 N. E. 779; Lewis County v. State Bank, 31 Idaho 244, 170 Pac. 98. 45 City Nat. Bank v. Morissey, 97 Conn. 480, 117 Atl. 493. 46 Kinne v. Ford, 52 Barb. (N. Y.) 194, affd. 43 N. Y. 587. 47 Grannis v. Stevens, 216 N. Y. 583, 111 N. E. 263. 48 Irwin v. Deming, 142 Iowa 299, 120 N. W. 645. of a note signed by the president of a corporation and delivered to the payee with the understanding that it was not to become effective until it was also signed by the treasurer of the corporation.49 Nor is there a legal delivery of a note to a bank by a customer of the bank, until affirmative action thereon is taken by the bank or some one acting for it, as the entry of the note in the books of the bank and the transfer of proper credit, or there is some other act indicative of acceptance of delivery.50 Delivery of a note or check may be legally made by mailing the same to the payee. Thus, where the maker and the payee of a note live at a distance from each other, the placing of the note in the mail, addressed to the payee, constitutes delivery of the note.51 So, where a bank depositor mails a check on his account to the payee, the mailing of the check is a legal delivery of it, and it is not affected by the death of the drawer before it reached the payee.52 But, on the other hand, it has been held that where a letter containing a check is sent by mail to the payee, the title to the check remains in the sender until it comes to the hands of the payee, unless the payee has requested the sender to forward the check to him by mail, in which case the title vests in the payee when the check is mailed to him.53 So the title to a note does not pass from the maker, in case it is made payable to his order, until it has been transferred by indorsement to a bona fide purchaser.5+ There may be constructive delivery of a check, under the Negotiable Instruments Law providing that "delivery means transfer of possession, actual or constructive, from one person to another," as 49 In re Continental Engine Co., 234 Fed. 58. 50 National Bank v. Whitney, 40 Cal. App. 276, 180 Pac. 845. 51 Trego v. Cunningham, 267 I11. 367, 108 N. E. 350, revg. 188 Ill. App. 70; Burr v. Beckler, 264 Ill. 230, 106 N. E. 206, L. R. A. 1916A, 1049, Ann. Cas. 1915D, 1132; Barret v. Dodge, 16 R. I. 740, 19 Atl. 530, 27 Am. St. 777; Canterbury v. Bank of Sparta, 91 Wis. 53, 64 N. W. 311, 30 L. R. A. 845, 51 Am. St. 870. 52 Bainbridge v. Hoes, 149 N. Y. S. 53 Watt-Harley-Holmes Hardw. Co. v. Day, 1 Ga. App. 646, 57 S. E. 1033; Talbot v. Bank of Rochester, 1 Hill (N. Y.) 295; Graves V. American Exch. Bank, 17 N. Y. 205. In the case of Watt-Harley-Holmes Hardw. Co., 1 Ga. App. 646, 57 S. E. 1033, the court held that title to a check deposited in the postoffice remained in the sender so long as the letter containing the check could have been withdrawn by the sender from the postoffice. 54 Sabine v. Paine, 166 App. Div. 9, 151 N. Y. S. 735. |