This is an action to recover the possession of certain described instruments consisting of a note, mortgage, and two deeds, each signed by the plaintiff, and alleged to have been deposited with the defendants.
The plaintiff was nonsuited, and the question before us is, whether the testimony of plaintiff was such as to show that the documents in controversy were delivered by him to defendants in escrow, as claimed by them.
We think the fair import of the testimony is to the effect that plaintiff had made an agreement, subject to further consideration as to title, with one Stimson and a Mrs. Buttner, for the purchase of certain property from them, and the sale by him of certain lots to them, and as part of this transaction the note, mortgage, and deeds of plaintiff, and the deed of Stimson and Mrs. Buttner for plaintiff, were signed and left with defendants, to be delivered “ when everything was all right and perfected." Upon this point the plaintiff testified: “I said to Mr. Sears: You take these papers, and when everything is all right and perfected, you give these papers to me, and *284these others to him. • That was the agreement..... The transaction was not completed on that day, because we had no abstract of title at the time; we knew nothing about the titles, and we had to leave that to after consideration. If it had been perfect, of course we should have handed over the papers.” Upon this state of facts, it cannot be held that plaintiff’s papers were delivered to the defendants as an escrow. There was no contract of sale concluded between the plaintiff and the other parties to the negotiation, as the question of title remained to be settled to the satisfaction of the contracting parties. This fact alone is fatal to the contention of respondents that they held the documents in controversy as an escrow. The law upon this point is very clearly stated by Mr. Justice Rhodes, in delivering the opinion of this court in Fitch v. Bunch, 80 Cal. 209, as follows: “An escrow differs from a deed in one particular only, and that is, the delivery. Not only must there be sufficient parties, a proper subject-matter, and a consideration, but the parties must have actually contracted.....The actual contract of sale on the one side, and of purchase on the other, is as essential to constitute the instrument an escrow as that it be executed by the grantor; and until both parties have definitely assented to the contract, the instrument executed by the proposed grantor, though in form a deed, is neither a deed nor an escrow; and it makes no difference whether the instrument remains in the possession of the nominal grantor or is placed in the hands of a third party, pending the proposals for the sale or purchase.”
But in addition to this, we do not think that it can be held, upon the facts above stated, that the defendants were given the right to deliver these papers without further direction from the plaintiff. The delivery was not absolute and beyond the control of the plaintiff. There was to be no delivery to the other parties until “everything was all right and perfected,” and as there is nothing in the evidence to indicate that this matter was to be determined except by the future agreement of the *285parties themselves, it follows that defendants held the documents in controversy as mere depositaries subject to the future direction of the plaintiff, and were not authorized to do anything with them until notified by plaintiff that he was satisfied with the title he was to receive. For this- reason, also, it must be held that the evidence does not show a delivery of these instruments in escrow. (James v. Vanderheyden, 1 Paige, 386.)
It follows from the foregoing views that the court erred in granting the motion for nonsuit.
Judgment and order reversed.
McFarland, J., and Beatty, C. J., concurred.