This is an action on a negotiable promissory note. The defense was that the note was executed and delivered by appellants to one MacMullin on a deal by which he would sell appellants a certain 80-acre tract of land free and clear of all encumbrances, and would the next day execute and deliver to appellants a written contract to that effect and an abstract showing title in him free and clear of all encumbrances; that the promissory note in question was delivered by appellants to MacMullin with the understanding that it would not become effective until the execution of the contract of sale and the delivery of the abstract; that shortly after receiving the note, and before executing and delivering the contract, MacMullin mortgaged the land for $3,000; that upon learning this appellants refused to execute the contract and the deal was never completed; that respondent acquired the note from MacMullin with knowledge of all these facts. At the conclusion of the evidence the trial court directed a verdict for respondent; upon this verdict judgment was entered, from which this appeal is taken. There are many assignments of error but we need consider and discuss only one, to wit, that the trial court erred in directing a verdict in favor of respondent and against appellants.
Appellants are father and son. They introduced testimony to the following effect: MacMullin wanted to sell them the land in question for $4,000. They looked it over and decided to take it. One dollar was paid down, and appellants executed a note for $1,000 dated June 10, 1920, due December 1, 1921, and a note for $2,999 dated June 10, 1920, payable December 1, 1921, the latter being the note in suit. These notes were left with MacMullin until the executed contract and abstract should be delivered, with the understanding that they should not take effect until the deal was closed. MacMullin said he owned the land and it was clear; he just wanted time to get the abstract made out. *Page 740 He was to furnish the contract and abstract the next day. On June 13th, one Ellsworth, cashier of respondent bank, asked appellant T.J. Campbell if he had given MacMullin some notes. Campbell told him how the deal stood, that he had left the notes in MacMullin's care until the deal was settled up and if he got the abstract and contract all right, he would just as soon Ellsworth held the notes as anybody else. On June 15th, before furnishing the contract and abstract to appellants, MacMullin mortgaged the land for $3,000, the mortgage being recorded on June 20th. Toward the last of June MacMullin delivered to appellants a contract of sale executed by him, but never delivered an abstract. Appellants learned of the execution and recording of the mortgage, refused to execute the contract and called the deal off. Respondent acquired the note from MacMullin some time between June 13th and June 15th, 1920. On cross-examination of appellant's witnesses respondent brought out that in September, after the deal was called off, appellants took two notes from MacMullin to protect themselves, one for $1,023.11 and one for $3,068.33. In January, 1921, they brought action against MacMullin on the $1,000 note and obtained judgment by default. It is clear that the purpose of this transaction was to protect them against loss from the notes which they had given to MacMullin, one of which had been acquired by respondent. Appellant sought to show that respondent was instrumental in suggesting and effecting this attempted settlement between them and MacMullin, and in the bringing of the suit. Evidence to this effect was rejected by the court on objection by respondent. The court also sustained respondent's objection to the question whether anything had been realized by appellants on the judgment against MacMullin or on the notes. However, there is no evidence that anything was so realized.
C.S., sec. 5883, provides as follows:
"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 *Page 741 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 parties prior to him so as to make them liable to him, is conclusively presumed. . . . . "
There is no question but that a conditional delivery, as set up in the answer and testified to by appellants, would have been a defense to appellants as against MacMullin. It was a defense against respondent unless it was a holder in due course. (Liberty Trust Co. v. Tilton, 217 Mass. 462,105 N.E. 605, L.R.A. 1915B, 144.) Parol evidence is admissible to show such a conditional delivery. (Hill v. Hall, 191 Mass. 253,77 N.E. 831; Hodge v. Smith, 130 Wis. 326, 110 N.W. 192; FirstState Bank v. Kelly, 30 N.D. 84, 152 N.W. 125; Key v.Usher, 30 Ky. Law Rep. 667, 99 S.W. 324; Norman v. McCarthy,56 Colo. 290, 138 P. 28; Joyce on Defenses to Commercial Paper, sec. 486.) Further, upon appellant's producing evidence that the note was delivered to take effect upon a condition which was not fulfilled, the burden was upon respondent to show that it took without notice. (Hodge v. Smith, supra; Holdsworth v.Blyth Fargo Co., 23 Wyo. 52, 146 P. 603; Mendenhall v.Ulrich, 94 Minn. 100, 101 N.W. 1057.) The fact that the note was delivered to take effect upon a condition which was not fulfilled would constitute a defect in the title of the payee MacMullin, who negotiated it to respondent, and, under C. S., sec. 5919 and sec. 5926, it was incumbent upon respondent, in order to show it was a holder in due course, to prove that it took without notice of such defect in the title. (Wright v.Spencer, 38 Idaho 447, 226 P. 173.) Respondent introduced no evidence to show that it took the note without notice of any defect in MacMullin's *Page 742 title. On the contrary, appellant T.J. Campbell testified, as above set forth, that he told Ellsworth, the cashier of the bank, in answer to the latter's inquiry, that the notes were to take effect only if the deal were closed. This was sufficient to constitute notice of the conditional delivery, and notice to Ellsworth the cashier was notice to respondent.
Respondent contends, however, that the later transaction between appellants and MacMullin, by which they took his notes to protect them against loss on account of the notes which they had delivered to him, estops them from setting up the defense based upon the conditional delivery of their note. There is some conflict in the testimony as to when respondent acquired the note in suit. An inference may be drawn from Campbell's testimony that it was in June, whereas witness Hart, who was respondent's cashier at the time this action was, tried, testified from respondent's records that it was on September 4th. In any event it was acquired before MacMullin gave his notes to appellants on September 24, 1920. The rights of respondent attached when it took the note, and whether or not it was a holder in due course must be determined as of that date. The question is therefore unaffected by the later transaction between MacMullin and appellants. Moreover, from any reasonable point of view which may be taken of the matter, it cannot be logically held that appellants should be compelled to pay respondent, and take their chance of recovering from MacMullin. They had a right to take the notes from MacMullin, and hold them as security for what they were worth, but this in nowise estopped them from setting up their defense as against respondent. If MacMullin had actually paid the notes or any part thereof appellants would be estopped to set up this defense to the extent of the amount they had received from MacMullin. In such event, however, the fact that they had received the money from MacMullin would be the basis of the estoppel, and not the fact that they had taken the notes. Certainly it could not be claimed that appellants would be estopped as against MacMullin to *Page 743 set up their defense in an action brought by him upon the note merely because they had taken a note from him. Respondent stands in no better position than MacMullin would. For a case involving essentially similar facts and reaching the same conclusion see Saline Valley Bank v. Peckham, 108 Kan. 560,196 P. 593.
Applying the above principles to the evidence introduced in this case, it is impossible from any point of view to reach the conclusion that the trial court was justified in directing a verdict for respondent. It could be argued much more logically that a verdict should have been directed for appellants. However, in view of all the circumstances, we conclude that the question whether the defense of conditional delivery was established, should have been submitted to the jury. The reasonableness of the version of the transaction given by appellants is a question for the jury rather than for the court. However, if the conditional delivery be established, the question as to whether respondent took with notice is not one for the jury. The burden of proof was on respondent to show that it took without notice. (Wright v. Spencer, and other cases cited, supra.) Respondent introduced no evidence to sustain this burden. On the contrary, appellants introduced evidence, uncontradicted and unimpeached, to the effect that respondent took with notice. Under these circumstances the case should have been submitted to the jury with the instruction that, if they found the notes were delivered by appellants to MacMullin to take effect only if the deal were completed, and that the deal was not completed through MacMullin's fault and without fault of appellants, they should find for appellants.
The judgment is reversed and the case remanded for further proceedings in accordance with the views herein expressed. Costs to appellants.
Dunn, William A. Lee and Win. E. Lee, JJ., concur. *Page 744