To give a construction to and to declare-the legal effect of contracts introduced in evidence to a jury, is undoubtedly the proper function of the court;-and it is the duty of the court, before whom the case is tried, so to do, if requested. But under the circumstances disclosed in the bill of exceptions, the failure of the court below to do so in this case involves no error. It would seem that by the voluntary acts, and actual or tacit consent of counsel on both sides,, the contract between the railroad company and Chamberlain for the construction of the road, was formally offered and received as a part of the evidence in the case ; but, as is quite common in practice, when neither party desires to have the written evidence adduced construed by the court, and when both parties are willing to trust its reading and interpretation to the jury, it was not read to either court or jury the attention of the court was not specially called to its provisions ; no request was made for its construction by the-court; and it was probably permitted to lie upon the table of counsel until the jury retired to deliberate on the verdict to-be rendered, and then, with other evidence, it was handed te them. To claim that the failure of the court to construe the contract under these circumstances is error, would be unfair, alike to the court and to the opposite party ; a.nd if the claim-were sustained, it would sanction what would often be a surprise upon both. If a party desires the construction of the court in regard to the contents of a written instrument in-evidence, he must in some way manifest such desire.
On the supposititious state of fact, to be found by the jury-on an examination of said contract, the court laid down the-*247rule correctly, and in strict accordance with the ruling of this court in Cincinnati v. Stone, 5 Ohio St. Rep. 88. It charged, “that if they found from the contract, that the company did reserve the right to control the mode and manner of constructing the road, then, as to the damage sustained by the plaintiff outside of the one hundred feet not covered by the release, and also as to the damage done inside of said one hundred feet, in case they found, on the evidence and the law as before given, the release to be inoperative, the company was liable to the plaintiff for all damages he had proved he had sustained.” And to guard against the possible inference, from this general proposition, that the company might be held responsible for injuries by the contractor or his employees, growing out of acts not within the company’s reserved power to control, or for injuries not by a reasonable necessity involved in the very act of constructing the road, the court adds : “ in all respects falling within the limits of the right of the company so reserved to direct and controland “ that, beyond those limits, the company would be responsible only so far as the construction of the road, by a reasonable necessity, involved the doing of the damage complained of.”
I have considered the last exceptions first; for the reason that in respect to them, the majority of the court is very clear in the opinion that there was no error in the court below.
The first exception presents a question of more doubt and difficulty, but in respect to that also, the majority of the court is of opinion that there was no error.
The action was brought to recover damages for an alleged trespass upon, and appropriation of the plaintiff’s land, for the construction and use of a railroad. The railroad company answered, setting up, in bar of the action, an alleged release of the right of way to it by the plaintiff. The signing and sealing of the instrument of release was not contested by the plaintiff. But the point of contest was, whether the release had ever become operative by what, in law, amounted to an effective delivery. The record shows, and it was admitted1 *248on all hands, that the paper, after being, signed and sealed, was put into the hands of one Carrol, who was an agent of the company to procure the right of way for its road, and who subsequently delivered the paper into the possession of the company without any other authority from the plaintiff than what was given by him when he parted with its immediate custody.
From the tenor of the charge of the court below .to the jury, it would seem to have been claimed there in behalf of the company, as it is claimed here, that the act of the plaintiff, in handing over the instrument of release to a known agent of the company to procure the right of way for its road, was, of itself, and necessarily, in law, an effective delivery to the company.
On the part of the plaintiff, it seems to have been contended, as it is contended here, that he did not deliver the paper as a completed iustrument of release to Carrol, as the agent of the company, to accept such delivery; but that, at the time he handed the paper over to Carrol, he distinctly constituted him his own agent, or depositáry, to hold the instrument as an escrow, until the performance of the condition mentioned in the statement of the case ; and, in case of its nonperformance, to return it to him; and that such act of handing the paper over to Carrol, was not, in law, a delivery to the company.
Such being the claims of the parties respectively, and evidence having been given by both parties in support of their respective claims, as to matters of fact, the court below charged the jury — “ that if they found the release of the .plaintiff was executed, and delivered by him to Carrol, upon the condition hereinbefore stated, and that the condition had not been performed at the time Carrol delivered the release to the company, the same was obligatory upon the plaintiff, if he knew, or had good reason to believe, at the time he so delivered the release to Carrol, that Carrol was the agent of the company for the purpose of procuring for it the right of way for its railroad through the county; unless Carrol was distinctly constituted the plaintiff’s agent, as well as the *249agent of tbe company, for the purpose of holding and returning to him the paper, in case of the nonperformance of the condition; and that this could be done, although the plaintiff ¿new that Carrol was acting as the agent of the company in obtaining such right of way; that it was competent for the plaintiff, by plain and distinct terms, to constitute Carrol his own agent, for the purpose of holding the release, and returning it in case of the nonperformance of the condition; and that it made no difference that the company did not know of, or give its consent to, such agency in behalf of the plaintiff.”
The correctness of the first part of this charge is not controverted. It is certainly a distinct and unequivocal recognition and application of the general and undisputed doctrine, that a delivery of an instrument of grant, or release, to a known agent of the grantee or releasee, is, in law, a delivery to the principal; and that the instrument will be effective according to its terms, no matter what verbal stipulations may have been made at the time of its delivery, in respect to its operation after delivery. There can be no doubt, according to the uniform current of authority, that if, in this case; the instrument of release had been, as a completed instrument, delivered to Carrol simply as the agent of the company to procure the right of way, although the delivery may have been accompanied by verbal stipulations that the instrument should not operate as a release, until and unless certain conditions were first performed, the release would have been operative according to its terms, and the verbal stipulations in respect to its operation after delivery, would have amounted to nothing. And this view of the law of the case upon the state of fact supposed, is not only consistent with the first part of the charge of the court, but is plainly declared by it.
But a delivery of an instrument of release, as a completed and fully executed instrument, to a known agent of the grantee, acting simply in the character of such agent, is one thing; and the act of placing such instrument in the hands of the same person- — -placing it in his hands, not to be by him handed over to the releasee at all events, but to be re*250tained by bim, and returned to tbe releasor in case of tbe nonperformance of a condition named — tbe paper to be beld by bim, and, in case of the nonperformance of tbe condition, returned, as tbe agent or depositary of tbe releasor, and bis selected custodian of tbe instrument for that purpose, is certainly a different thing in point of fact, whatever it may be in point of law. The word “agent” is used by the court below to designate the supposed relation between the plaintiff and Carrol. Perhaps “ depositary” or “ custodian” would have been a better word; but, as his supposed functions are fully defined in the charge, the word employed is of no moment.
It is on the hypothesis that the jury should find this latter state of fact to be true, that the remainder of the charge of the court below proceeds, and in which it is insisted that error has intervened. And so the question is raised, not whether delivery to a known agent is, in law, a delivery to the principal — for that was, in effect, distinctly charged by the court below; but whether Carrol’s agency for the company was so incompatable with the relation of agent or depositary of the plaintiff, and his custodian -of the paper, as to legally incapacitate him for the acceptance of the latter relation. The majority of the court has been unable to see, either in principle or authority, any solid foundation on which the proposition involved in the affirmative of this question can rest.
And, first, how stands the question on principle ? Carrol, for aught that appears in the record, was a man of full age, of sound mind, and under no duress or undue influence. He was under no personal disability to assume any lawful relation open to citizens in general. And, if there were no necessary conflict between the two, he was as free to accept an agency from the plaintiff, as he had before been to accept one from the company. No such necessary conflict is shown in the case. He was the agent of the company for the purpose of procuring releases of the right of way for its road. But how was he to procure them ? By fraud or other undue means; by the grabbing and appropriation of instruments *251signed and sealed, but not delivered, nor intended to be delivered, as completed and fully executed instruments; or in any way other than by the free consent of the i eleasors? Certainly not. Nothing of the kind can be presumed, nor could the law recognize the valid existence of any such agency, if an attempt had been made to create it. If, then,, the plaintiff, having signed and sealed the instrument of release, had handed the same to Carrol, and formally said, “I hereby hand you, as my agent and depositary, this paper, to be held and retained by you until the condition heretofore named and understood between us has been performed; and, in case of its nonperformance, the same is by you to be returned to me;"" what was there, either in the relations or obligations of Carrol to the company, to prevent his acceptance of this trust? What duty to the company would he thereby violate? If this instrument had been handed over to a person who was an entire stranger to the company, under similar instructions and conditions, and with similar restrictions on his authority, it is clear that it would be but an escrow; and had he, in violation of his trust, delivered it to the company, it would have been, in the hands of the company, entirely inoperative. And the same result must follow, if the acceptance of this trust by Carrol from the plaintiff involved the violation of ho duty which he owed to the company. And, so far as I am able to see, there was no necessary antagonism between the duties which, as its agent, he owed to the company, and those which the charge of the-court below supposes him to have assumed to the plaintiff. He could faithfully discharge his duty to either, without a violation of duty to the other; and therefore, on principle, the law could impose upon him no disability to prevent his acceptance of both. ’
And, looking into the books, we do not find anything to shake, but do find something to sustain, our position on this question. Counsel for plaintiff in error have been diligent ’in their researches, and they cite us to numerous cases ; all of which, however, go only to assert and sustain the general, doctrine embraced in the former part of the charge of the *252court below. None of them involved and none of them assume to decide the question we are considering. Among other cases to which we are cited, is that of Worrall v. Munn 1 Selden, 229. In that case, the instrument was a written contract for the sale of lands. The vendor delivered the writing to the known agent of the vendee, to be by him delivered to the vendee, with the stipulation that it should not be operative unless it was approved by one Prall, another party. And it was held that the delivery was complete, and the condition of no effect. But Paigé, J., in delivering the opinion of the court, is careful to distinguish that case from .such a one as we now have before us, and, it seems to me, strongly intimates that if that case had been like this, his opinion would have coincided with ours. He says, “ It was not handed to Henry Worrall [the agent] as an unexecuted and imperfect paper. There was no direction to him to retain it, and not to deliver it to the appellant until it was ratified by Prall. It was not left in his hands for a temporary purpose, and to be returned in case Prall did not assent to it; but it was delivered to Henry Worrall, as tho agent of the appellant, as an executed and perfect instrument, on the condition that Prall subsequently assented to it. Such a delivery was, in law, an absolute delivery.”
Fairbanks v. Metcalf, 8 Mass. 230, is a case which, though by no means analogous to this, yet, it seems to me, throws light on the question before us. There the question was as to the delivery of a deed of conveyance, admitted to be duly executed in all other respects. Metcalf, the grantor, handed the deed to Adams, the grantee, with this understanding and agreement between them, that Adams should transmit the deed to one Woodward, to be by him held as an escrow until certain stipulated conditions wer'e performed, and then it was to be finally delivered to Adams. This arrangement between the parties was carried out in good faith; and, on the performance of the condition, Woodward delivered the deed to Adams, the grantee.. It was insisted, in argument, that the act of the grantor in handing over the deed to the grantee in the first instance, was, in itself and in law, a delivery of the deed, *253though it was not so intended by the parties. But the court held that the grantee was but the agent of the grantor, foi the purpose of transmitting the deed to its intended depositary; and that the deed took effect only from the time of its final delivery by him to the grantee. Now, if that case was correctly decided (and it has been followed in Brown v. Reynolds, 5 Sneed, 639), it proves that a grantor may hand over to a grantee a deed, perfectly executed in all respects except delivery, without that act being of necessity a delivery; that the grantee has legal capacity to receive the deed into his manual possession for other purposes than those of grabbing the instrument, and appropriating its subject matter; and. that the grantee may even be made the agent of the grantor for purposes connected with the disposition of the paper prior to the time when it is to be delivered in accordance with the intentions and agreement of the parties. And if these propositions are true of the grantee, a fortiori, are they true of his agent, between whom and his principal there is no personal identity, but only a legal identity, and that limited by the scope of that particular agency ? True, it is said in that case, and is the established doctrine, that a grantee can not be made the depositary of an escrow, although he may be made the agent of the grantor, for the purpose of transmitting it to the depositary. The depositary of an escrow must be a third person. But the agent of a grantee is such third person. The incapacity of the grantee to become the depositary of an escrow, arises out of his personal identity but there is no personal identity between the principal and agent; and surely there can be no legal identity between them beyond the legitimate purposes of the particular agency; and if he assume another agency, whose duties are in nowise inconsistent with those which arise out of the first, there is-no incompatibility, and there can be no legal incapacity.
The last case which we shall notice, and the only one of which we are aware, in which the point in controversy has been directly decided, is that of The Southern Life Insurance and Trust Company v. Cole, 4 Florida Rep. 359. In that case a deed of mortgage had been delivered by the mort*254gagor to the known cashier of the Southern Life Insurance and Trust Company, which was the mortgagee, at its office, to be by him held as an escrow. And the court there held that- “ the delivery of a deed is á matter in pais, and though the possession of a deed by the grantee is prima facie evidence of delivery, yet the circumstances under which the grantee became so possessed, may be shown, even in a court of law, so as to avoid the effect of delivery. The delivery •of a deed to the officer or servant of .a corporation is delivery to the corporation itself; provided it is for the use and benefit of the corporation, and with intent to pass an absolute property and interest. Rut there is no such personal identity between a corporation and its officers as to prevent or preclude a delivery to the latter as an escrow, to take effect upon the performance of some condition.”
The delivery of the release to Carrol, in the case before as, is claimed by the defendant in error to have been a delivery of it as an escrow. I confess I am unable to see any objection to giving it that name; and, to my mind, the state of fact which, under the charge of the court, the jury must have found, bring it clearly within the definition of an escrow. •Chancellor Kent (4 Com. 454) thus defines an escrow. A deed “ may be delivered to a stranger as an escrow, which means a conditional delivery to the stranger, to be kept by him until certain conditions be performed, and then to be delivered over to the grantee. Until the condition be performed, and the deed delivered over, the estate does not pass, but remains in the grantor. Generally an escrow takes • effect from the second delivery, and .is to be considered as the deed of the party from that time; but this general rule • does not apply when justice requires a resort to fiction.”
The phrase “ a stranger,” used in this definition, or the phrase “ a third person,”, which, in many of the books, is used interchangably with it, it seems to me, can mean no •.more than this — a stranger to the deed, as not being a party to it; or at most, this — a person so free from any personal or legal identity with the parties to the instrument, as to •leave him free to discharge his duty, as a depositary, to both *255parties, without involving a breach of duty to either. And I believe that no case can be found, no opinion of any jurist can be cited, to the effect that the agent of one party is in-•capacited from becoming the depositary of an escrow; and ■if we were to decide that such incapacity existed, we would originate a distinction hitherto unknown to the books.
Judgment affirmed.
Sutliít, C.J., and Peck and Scott, JJ., concurred; Ghol-■SON, J., dissented.