I cannot see the facts to be as found by the majority. As I read the record, the escrow agreement between appellant and Hallock was based upon the mutual assumption that all of the goods had been shipped, and that, when the express shipment should arrive in Seattle, the conditions of the escrow agreement would be fully met. The words "all of the goods" stressed by the majority, mean all of the goods covered by both freight and express *Page 496 shipments, and the correspondence does not justify any other or broader construction. To my mind it is inconceivable that appellant, being a holder of the draft in due course, would have consented to waive or defer its rights as such holder until the body company should make up and ship goods which perhaps were then not even in existence. Nothing in the communications which passed indicates that Hallock asked or expected it to do so. If this view be correct, then the escrow agreement was fully performed on the part of the appellant when the express shipment arrived in Seattle, and it should recover the fund involved, less only the freight charges.
MITCHELL, J., concurs with TOLMAN, J.