dissenting.
Had I been on the jury I might have found the verdict enunciated by the court in its opinion. But I am of the opinion that there is ample evidence, if believed, to sustain the jury’s verdict; and I am not able to say that a govern-, mental official is, as a matter of law, so discreet, careful and wise that “it is inherently improbable” that he would have accepted a delivery in escrow of the bond here in question upon the conditions testified to by the defendants in error. Also there is in Mr. Bristow’s own testimony some statements which tend in some measure to support the testimony of the defendants in error on these points, notwithstanding his categorical statement that it was neither delivered in escrow nor delivered upon any condition.
Nor do I concur in the view which the court seems to entertain that any such parol agreement (i. e., the delivery in escrow of the bond accompanied by parol statements of the terms and conditions of escrow testified to by the defendants) violates the terms of the bond itself, and therefore is a violation of the parol evidence rule.
My understanding of the law is that when a bond is delivered in escrow upon a condition (whether parol or written) the terms of the bond cannot speak until the conditions of the escrow have been performed (or performance waived) ; and, therefore, the conditions of the escrow cannot properly be said to violate the terms of the bond, because they have never become effective to be violated.
The plaintiff introduced in evidence the bond which is quoted in the court’s opinion, and proved by his own testimony the following facts which are not disputed: The State Bank of Columbia was closed on December 11, 1930, and on December 15, 1930, he was appointed receiver for it. On the day Rhodes was appointed receiver M. E. Bristow, Commissioner of Banking and Insurance for the State of Virginia, sent the bond here sued upon to him by registered mail. At the time the bank was placed in the hands of a receiver it had sustained losses amounting to between *375$130,000 and $135,000 which had entirely wiped out its surplus and its capital. Its capital was $20,000. Prior to the institution of this action the plaintiff made demand upon each of the obligors on this bond for the payment thereof, but none of them has paid anything thereon. Between the[ date of this bond (October 14, 1930) and the time the bank was closed, new depositors made deposits in the bank aggregating $1,600 which had not been drawn out when the bank closed its doors. Including the above items, $7,348.53 was deposited in the bank between October 14th and December 11, 1930, which was not checked out. Outside of anything that may be collected on this bond, the assets of the bank will pay the depositors approximately twenty-five per cent of their deposits. The operating expenses of the bank from October 14th to December 11, 1930, exceeded interest and discounts received by about $4,000; but it does not appear that the operating expenses exceeded interest earned (though not collected) during that time.
When the bond was executed it was delivered to M. E. Bristow, Commissioner of Banking and Insurance for the State of Virginia, by whom it was held until he mailed it to the plaintiff on December 15, 1930.
The testimony of the several defendants relating to whether the bond was delivered in escrow and, if so, the conditions of the escrow, is fairly reflected in the following questions and answers:
Mr. S. W. Shelton, direct examination:
“Q. Tell what Mr. Bristow required or what he did.
“A. Mr. Bristow required the directors of the State Bank to execute a bond in the penalty of $25,000, to be delivered to him, and to be held by him and then used by the bank, if the bank suffered a loss by reason of Mr. Bristow’s allowing the bank to remain open for a period of time necessary to consummate these merger proceedings.
“Q.. Would he permit you to keep the bank open * * * without some bond?
“A. No.
*376“Q. What was the understanding and conditions upon which the bond was to be delivered?
“A. To be held by Mr. Bristow to keep the bank open during the negotiations of this merger.
“Q. When did you give the bond to Mr. Bristow?
“A. The day Mr. Sanderson signed it in Mr. Bowles’ office (i. e., in the office in Richmond of the Deputy Commissioner of Insurance and Banking, several days after the other obligors had signed it).
“Q. And the bond was given upon the condition that it was not to become effective, except that the bank sustained a loss during the period you have just mentioned (i. e., while negotiations for a merger with the Louisa bank were in progress).”
“A. Never heard anything else attached to it.”
S. W. Shelton cross-examination:
“Q. You have testified that this bond was executed and delivered to Mr. Bristow on certain conditions. What did you say these conditions were?
“A. That Mr. Bristow should hold this bond and deliver it to the bank to be enforced if there was any loss during-that period that this merger proceeding was pending. He said that we could not keep the bank open without such bond.
“Q. Was that the only condition that was named?
“A. Only condition that I know anything about.
“Q. When was this condition agreed upon and between whom?
“A. It was agreed to between the men who signed the bond and the man we delivered it to. No other condition was ever mentioned, that the bond was required to protect, the bank during the time, which the merger could be completed. No other purpose had’ ever been suggested to me..
“Q. To whom did Mr. Sanderson deliver the bond?
“A. Delivered it to me to be delivered to Mr. Bristow,, of course.
“Q. As I understand these conditions to which you have testified were stipulated and agreed upon at Columbia at the-time all of you (except Sanderson) signed the bond there?'
*377“A. I never heard of anything else, except that it was to protect the bank during this period. The purpose was to complete the merger during this period. Mr. Bristow’s idea was that there might be a loss during that period and if there was any loss he was to use the bond. If we were going to indemnify the bank we would have delivered it to the officer^ of the bank.
“Q. As I understand you merely delivered the bond to him (Bristow) in Richmond and at that meeting nothing was said by you to him, at that time?
“A. I don’t recall anything. My recollection is that I saw him a moment and handed him the bond in accordance with the agreement we had at Columbia. The facts are that the bond was delivered to him at Columbia. Mr. Sanderson was not there, and Mr. Bristow asked me to take the bond and have it signed by Mr. Sanderson.
“Q. Can you tell us when it was first mentioned in regard to these alleged conditions upon which the bond was delivered or executed?
“A. At the time the bond was first mentioned. I never heard it mentioned under any conditions other than that. I think it was mentioned a week or so before it was given.
“Q. Your recollection is that at the time Mr. Bristow first mentioned requiring the directors to give a bond it was stated at the time that it was to be delivered to him upon the conditions which you have named?
“A. Absolutely the bond was delivered to him to protect ■ the bank during that period.
“Q. Had he agreed to permit you to keep the bank open any particular time?
“A. No. * * * as I remember Mr. Bristow said, ‘if you are fortunate and bend every effort you may consummate this merger in thirty days, but I believe it will take sixty or ninety days.’ ”1
Dr. Nash P. Snead, direct examination:
*378“Q. Were you present at the bank on the day the bond was given?
“A. Yes.
“Q. State what understanding existed at that time with reference to the delivery of this bond or the giving of the bond to Mr. Bristow.
“A. My understanding of it was this: That we were
negotiating with the Bank of Louisa to merge with that bank and while these negotiations were going on we gave Mr. Bristow to hold—I expected him to return the bond when he came up and closed the bank.
“Q. In what event was the bond to be used?
“A. In case there was any loss during that period of time.”
Dr. Nash P. Snead, cross-examination:
“Q. I understand you to say that you understood that you signed this bond and delivered it to Mr. Bristow to cover any loss which might occur between the date of the signing of the bond and the date of the merger or the closing of the bank?
“A. That is true.
“Q. And you state that no loss occurred, and that if any loss occurred * * * between (during) that period the bond was to be used?
“A. It was given to protect the bank during that period. I think that was the understanding.”
When Dr. Snead was called upon by the receiver to pay the bond here in issue, he wrote the receiver, on December 14, 1931, telling him that he was unable to pay the bond, and that he had no property out of which it could be made; but he made no mention of it having been delivered on condition. While he did not admit liability on it, he did not deny that he was liable thereon. He says that he did not make any reference to its having been delivered upon condition, because “it was not necessary, I don’t think.”
Mr. E. M. Jordon, direct examination:
“Q. State the circumstances under which you signed the bond.
*379“A. We were negotiating with the Bank of Louisa. I was on that committee, but at this meeting which we signed the bond they had a letter from the Bank of Louisa setting up the terms by which they would take us over. * * * We accepted their terms and after that we signed the bond, simply to take care of any loss that might be sustained during that period of time.
“Q. To whom did you deliver the bond?
“A. To Mr. Bristow.
“Q. What was the condition under which it was delivered to Mr. Bristow?
“A. That if any loss was sustained for the period that it might take to close the deal with Louisa.”
Mr. E. M. Jordon, cross-examination:
“Q. What do you mean by that answer? (i. e., the last above quoted.) I don’t quite understand just what the meaning of it is.
“A. I mean if the bank sustained any loss, after we gave this bond, between that time and the time we closed with Louisa.
“Q. What would happen in the event of a loss?
“A. The bond was not to be used unless some loss was sustained.
“Q. The bond was not to be used by whom?
“A. Mr. Bristow.
“Q. Can you tell us just exactly what was the agreement between your board and Mr. Bristow with reference to the bond which was executed, if there was any agreement at all?
“A. I have just stated that so far as I know.
“Q. The purpose of the bond was to indemnify the bank in the sum of $25,000 in the event of loss. You said that you understood that the bond was only to be used between the 14th of October and the time the bank merged. I ask you from whom this proposition came, from your bank or Mr. Bristow?
“A. I understood it was agreed on there at the meeting, that was the purpose of the bond.
*380“Q. I want to know whether this condition was attached and proposed by your board or by Mr. Bristow?
“A. For us to sign that bond, Mr. Bristow. * * * I don’t know whether it was Mr. Bristow or the board. That was my understanding.
“Q. Why did you understand that that was to be true?
“A. Mr. Bristow told us that unless we gave this bond he would close the bank on that day. This committee had a communication with the bank at Louisa, making us a proposition, setting forth the conditions under which they would take us over, that was brought before the board meeting and accepted before this bond was signed. Mr. Bristow told us it would take from thirty to sixty days, probably ninety days to close this deal with Louisa, and it was then we gave the bond to him to hold the bank open until the deal could be put over, with the understanding that it would cover any loss that the bank might sustain during that period.
“Q. I asked you though just what this condition was. I asked you whether your board first suggested it or whether Mr. Bristow suggested it, and you testified that Mr. Bristow said that unless you signed the bond he would close the bank that day.
“A. I don’t know that he said that day, but it was understood it would be closed.
“Q. Did you have any written agreement as to the delivery of that bond or the taking effect other than as set out in the bond itself?
“A. We had no written agreement.
“Q. Have any oral agreement?
“A. I think so. That is my understanding of it.
“Q. Did Mr. Bristow tell you that the bond was not to be delivered unless a loss was sustained?
“A. I don’t know that he did.
“Q. Did you tell him so? You did not tell him the bond was only to be effective upon the happening of that condition?
*381“A. I could not say who said it or how it was brought about, I can only tell you my understanding of it.”
He then testified that Mr. Bristow was in the board meeting for a part of the time, but that he thinks he was absent a part of the time during the meeting.
Mr. E. M. Jordon, redirect examination:
“Q. Mr. Crank asked you about this understanding with Mr. Bristow. Did you get your information from any other source than from that meeting there that day? * * * Did you get your understanding about the condition that the bond was given there that day?
“A. Yes.”
Mr. P. N. Stoneman, direct examination:
“Q. Did you see Mr. Bristow there that day (the day the bond was signed by him) ?
“A. Yes.
“Q. Who carried on those negotiations on the part of the directors ?
“A. Mr. W. S. Shelton.
“Q. What was the condition that the bond was signed and turned over to Mr. Bristow on that day?
“A. Being further from the bank, I got most of my information through Mr. Shelton. What led up to the signing of the bond was this. We were negotiating to merge the two banks * * * and I was relying on Mr. Shelton to give us all the information that I know regarding it.
“Q. On the day that you signed the bond what were the circumstances or the conditions that the bond was given to Mr. Bristow? What was the event in which it was to be used?
“A. That bond was given that day pending the merger with Louisa and as a director, all of the directors, we accepted the offer Louisa made. Under those conditions I agreed to sign the bond.
“Q. What were the conditions under which this bond was to be used?
“A. I understood that it was to save the bank harmless during this period.
*382“Q. Suppose the bank suffered no loss during * * * the period the negotiations were pending, what was to become of the bond?
“A. The bond was to become null and void and be returned, the only answer I could give.”
Mr. P. N. Stoneman, cross-examination:
“Q. To get back to this condition upon which this bond was signed, what did you say the condition was ?
“A. To save the bank harmless until we could complete the merger with the Bank of Louisa.
“Q. Suppose the merger of the bank went through, what was going to happen?
“A. The bond was to be returned.
“Q. Suppose it did not what was going to happen to the bond?
“A. As I stated, if the bank was saved harmless the bond would be returned.
“Q. Did Mr. Bristow ever tell you, as a signer of the bond, that if the merger did not go through the bond was to be returned to you?
“A. That is what I inferred.
“Q. You won’t state that he made that statement to the board of directors?
“A. No.
“Q. Where did you get the understanding from then?
“A. I got it through discussions in the meeting.
“Q. With whom?
“A. Mr. Shelton, I was relying on him.”
Mr. A. F. Moon, direct examination:
“Q. How long did Mr. Bristow remain up there with you on that day (i. e., in the meeting of the board the day the bond was signed).
“A. I think Mr. Bristow stayed there until the meeting was over. I won’t be absolutely sure.
“Q. Was the bond signed while Mr. Bristow was there?
“A. Yes, sir, all but Mr. Sanderson.
“Q. Was Mr. Bristow present when the discussions were had with reference to the bond?
*383“A. Yes, sir. He was present at some of them.
“Q. Was there any discussion there in Mr. Bristow’s presence as to how long it would take to complete these merger proceedings?
“A. I remember Mr. Bristow saying that he was glad we had accepted the Louisa proposition, but that we would find that it would take longer than we thought to complete it; that in his opinion it would take from thirty to sixty days and may be ninety days to complete it, and that he was mighty glad that we had taken that step, but that he felt like he should ask us gentlemen to give him a bond to be held by him until this arrangement could be completed in order for him to allow the bank to stay open. * * * We signed the bond afterwards.
“Q. Did you give the bond to him or the bank?
“A. We gave the bond to Mr. Bristow, I think, and later he gave it to Mr. Shelton to get Mr. Sanderson’s signature.
“Q. In what event was that bond to be used by Mr. Bristow?
“A. In the event our bank got in any worse shape than they were in before this merger could be put through.”
Mr. A. F. Moon, cross-examination:
“Q. Just exactly what was the condition under which you signed that bond. I am not talking about any one else now, but what conditions did you sign it under ?
“A. The condition under which I signed the bond was that we were not to allow our bank to get in any worse condition, as Mr. Bristow said, than it was before this merger went through.
“Q. What do you mean by that, any worse condition? Your version is a little different from the others, and I cannot gather what you mean.
“A. I mean that * * * I judge from what Mr. Bristow told us, that if we allowed our bank to get in any worse condition than it was on the day we signed the bond, then we were bound by that bond, and if we did not everything was well and good.
“Q. Mr. Bristow tell you that himself?
*384“A. He made that statement in that room.
“Q. Who was present?
“A. Everyone who was in the meeting.
“Q. You tell the jury that he made that statement?
“A. That was my understanding, as near as I can get at his exact words.
“Q. He closed you up on December 11, 1930, did he not? You must have been in worse condition, were you not?
“A. I don’t think we were. He told us that if you gentlemen don’t allow the bank to get in any worse shape than it was from the time the bond was given and the merger was completed. We had all faith that the merger was going through.”
Mr. C. R. Sanderson was not present at the meeting at which the others signed the bond. He signed it a few days later in Richmond in the office of the Deputy Commissioner of Banking and Insurance at a time (or as he calls it a meeting) when Mr. Bristow was also present a part of the time.
Mr. Shelton and several others of the directors of the bank were present. On direct examination he testified:
“Q. What was the understanding and condition that this bond was signed by you and given to Mr. Bristow?
“A. The information I got and the understanding I had. It was discussed generally at the meeting and I think Mr. Bristow was present part of the time. My understanding was we had to give the bond to continue in operation until we merged with Louisa. I looked upon it as a bond for the future conduct of the business, and not what we had done.
“Q. In what event was the bond to be used?
“A. In the event of any bad loans and bad management of the bank.
“Q. In case the bank sustained no loss during the period, what was he to do with the bond?
“A. I thought it was void.
“Q. Was that your understanding when you signed the bond and passed it over to him?
“A. Would not have signed it otherwise.”
Mr. C. S. Sanderson, cross-examination:
*385“Q. Who was it that was talking about the bond (in the meeting in Richmond he had mentioned) ?
“A. It was discussed among all of us there in the room and Mr. Bristow was present part of the time.
“Q. Did this discussion take place before you signed the bond?
“A. Both before and after.
“Q. Did Mr. Bristow tell you for what purpose the bond was given to him ?
“A. It was discussed in the room, I don’t know whether he discussed the matter personally or not.
“Q. Did Mr. Bristow ever discuss the conditions of the bond with you?
“A. He was asking that the bond be given and that unless it was given he would close the bank.
“Q. Do you recall anything else that he said about the bond?
“A. No, sir. I do not, that was the general impression made upon me by all the directors and Mr. Bristow, that he had to protect the State until this merger was completed or not completed whichever the case might be. I don’t know what would happen to the bond if the merger had gone through.
- “Q. Nothing was said about that one way or the other?
“A. I don’t recall it.
“Q. Was there anything said about what would happen to the bond if the merger went through?
“A. If the bank lost anything we would have been liable. I don’t recall anything else.
“Q. Was there any agreement between you or between the directors and Mr. Bristow in regard to any condition upon which the bond was to become effective?
“A. The whole impression made upon me was that the bond was given for the proper conduct of the bank officials during the time this thing was pending.”
Mr. Arthur Walton, direct examination:
“Q. Did Mr. Bristow come before your board (when you were present) and discuss the matter of this bond?
*386“A. Yes.
“Q. Tell upon what conditions this bond was delivered to Mr. Bristow, in what event the bond was to be used?
“A. I signed the bond thinking it was to protect the bank for the time being. My recollection was that it was to protect the bank from the time we signed the bond until the merger was complete. Never thought of the conditions at all.
“Q. When you delivered or gave the bond to Mr. Bristow in what event, or under what circumstances was it that he was to use the bond or turn it over to the bank?
“A. In case anything went wrong with the bank before the time it was given and the bank closed or taken over, the bank was taken over I should have said.”
Mr. A. H. Turner wa°s a director of the bank. He was present at the' meeting at which the obligors (other than Sanderson) signed the bond, but did not sign it himself. On direct examination he testified:
“Q. State just what conditions, if any, upon which this bond was delivered or in what event or circumstances the bond was to' be used by Mr. Bristow ?
“A. * * * What I understood from this meeting was that there was a merger with these banks2 and the Louisa bank. This bond was prepared and the directors signed it that evening for an amount of $25,000, I think.
“Q. Now in what event or under what circumstances was this bond to be used?
“A. In the event that the bank got in any worse condition from that day until the Louisa negotiations could be closed, as I understood it.
“Q. Was Mr. Bristow there that day?
“A. Yes, sir.
“Q. Did he make any statement with reference to the time it would take to complete these (merger) proceedings, and' if so what?
“A. Mr. Bristow said according to his judgment it would *387take from thirty to sixty and probably ninety days to complete the merger.
“Q. Did he at any time express or intimate any opinion on his part that no such merger could be effected ?
“A. No, sir. * * * Talked very favorably from what I understood. It did not seem to be any doubt in his mind.”3
Mr. A. H. Turner, cross-examination:
“Q. I understood you to say that bond was given upon the condition that if the bank did not get in any worse condition before the negotiations for the merger terminated that the bond was not to be effective?
“A. I don’t think I said that. The object of this bond was given to secure them while the merger was in progress.
“Q. To secure whom ?
“A. The bank.
“Q. Who said that?
“A. That was said among the directors. I did not talk to Mr. Bristow.
“Q. You won’t tell the jury that Mr. Bristow said that?
“A. No, sir.”
Mr. G. P. Hodgson, direct examination:
“Q. When that bond was signed and delivered to Mr. Bristow in- what event was it to be used ?
“A. That if the directors did anything between that time and the closing of the negotiations with Louisa to make the bank in worse condition than it was that day, that the bond would become effective, otherwise it would not.
“Q. Mr. Bristow testified here that he considered he was getting an outright contribution of $25,000 to the bank. Did he say anything about that, that day?
“A. Never heard anything about it.
“Q. Did you have any conversation with Mr. Bristow as to what° would become of the bond if the merger did not go through?
“A. I asked him what he was going to do. He said he would return it.
*388“Q. Did you ask him what would happen if the merger did not go through?
“A. I did not ask him that because, there was no doubt in my mind that the merger would become effective.
“Q. What was the understanding of what would become of the bond if the merger did not go through?
“A. My understanding was that it would not be effective.”
Mr. G. P. Hodgson, cross-examination:
“Q. You have stated * * * the condition upon which this bond was delivered, you have stated your understanding at the time the bond was given. What did you state? I will let you state it again.
“A. That if the board of directors did anything to bring about a worse condition during the period from the date of the bond and the closing of the bank or merger with the Louisa bank.
“Q. Who told you that?
“A. I don’t know that anyone told me that directly. That is the impression I got at this meeting.
“Q. You won’t state that Mr. Bristow said that?
“A. No, sir. Made that impression, but I won’t say that he said that.
“Q. And you cannot name anyone else who told you that ?
“A. No, sir.
“Q. All you can say is that is your impression, and that is your opinion?
“A. That is the reason I signed the bond, because I was so sure the merger would go through.”
A number of the witnesses testify that the bank was certainly in as good, if not better, shape when it was closed as it was on the day the bond was signed; and the evidence is, I think, wholly insufficient to support a verdict predicated upon a finding that the bank sustained any loss during the period intervening between the date of the bond and the time it was closed.
The plaintiff introduced M. E. Bristow in rebuttal, who testified as follows:
“Q. State to the jury, Mr. Bristow, whether there were *389any conditions attached, agreed upon between you and the directors of the bank at that time (i. e., when the bond was signed and given to him) which were not set forth in the bond?
“A. No, sir. The bond set forth the terms under which ‘ it was taken.
“Q. Were any conditions given or agreed upon or anything that had to happen before the bond was to become operative?
“A, No, sir. I considered there was a deficiency in the assets there of $25,000 to $50,000. I don’t think the directors agreed with me, and therefore, I agreed to a bond for $25,000.
********
“Q. Was there any agreement or understanding between you and the directors of said bank that this bond was only to become operative in the event of a loss sustained by the bank between October 14th and the date the bank was closed, or the date the bank merged with the Bank of Louisa, or was abandoned?
“A. No, sir. I believed the bank’s capital was impaired or in danger of being impaired as set out in the bond itself.
“Q. Would you have taken the bond with any such verbal agreement attached to it?
“A. No, sir. I took it according to its own terms. I had no idea of holding it in escrow.
********
“Q. You would have closed it (the bank) if they had not given the bond?
“A. Yes, sir.
“Q. Under any bond that was given some loss would have to take place before the bond would become operative, would it not ?
“A. Under any bond the bond would have to be breached before it became operative, but I considered the bond a part of the assets of the bank.
“Q. You don’t mean to tell the jury and court that these *390.gentlemen were to pay this bank $25,000 as a contribution to the bank, unconditionally?
“A. Yes, sir, read the bond itself.
“Q. If that were a contribution to the capital assets of _ the bank, why did you state that this bond was to be returned to this (your) office and held until the bank’s difficulty is over?4
“A. That is the way I interpreted the bond. If they got the bank back on its feet then I would return the bond, if they were to put $25,000 in the bank’s vault it would have been right hard for me to take it out and hand it back to them.
“Q. Suppose the merger had taken place, what did you propose to do with that bond?
“A. In that case I should have regarded the depositors as properly protected and returned the bond.
“Q. Then it was not an outright contribution?
“A. I regarded it as an indemnifying bond to protect the hank until it had overcome its difficulties.”
While the testimony of the defendants differs somewhat as to the terms upon which the bond was delivered to Mr. Bristow, I am not able to say that the evidence is, as a matter of law, insufficient to support a verdict predicated upon a finding that this bond was delivered to Mr. Bristow in escrow upon condition that it should be delivered to the hank only in the event of a loss sustained by the bank during the period intervening between the date of the execution of the bond and the date of its merger with the Bank of Louisa or the date of the closing of the bank, and that this condition has not been fulfilled. The jury by its verdict has so found, and the trial judge has refused to set its verdict aside. Under the rules of law pertaining in this jurisdiction it should not be disturbed.
*391In Ballard v. Com., 156 Va. 980, 991, 159 S. E. 222, 225,. Mr. Justice Holt speaking for the court said:
“We have here a jury’s verdict, approved by an able and unbiased judge. Such a verdict should not be set aside in this court merely because, as an original proposition, we might have reached a different conclusion. We sit as an appellate court and not as a jury.
“The appellate court will not be justified in granting a new trial, even if its members should think that if they had been on the jury they might have found a different verdict.”
In Richmond-Washington Motor Coaches v. Austin, 154 Va. 148, 152, 152 S. E. 357, 358, Mr. Justice Campbell speaking for the court quoted with approval the language of Judge Buchanan in Southern Ry. Co. v. Cash, 110 Va. 284, 65 S. E. 601:
“The court cannot invade the province of the jury on a motion for a new trial, by attempting to pass upon the credibility of the witnesses, to reconcile conflicting statements, or to determine the weight to be given the evidence of each. If there are conflicts or discrepancies in the evidence it is the jury’s province to reconcile them if possible, and, if not, the jury may give credence to the witness or witnesses who in their opinion are best entitled to it.”
In this connection it is to be noted that the terms of the escrow to which the witnesses testify is not that the bond should be delivered if “any depositor, or depositors, of the State Bank sustained any loss by reason of the bank remaining open for business”; but that it should be delivered only in the event of a loss sustained by the bank. Of course persons making deposits after October 14th, which they did not withdraw, suffered loss by the bank remaining open, for if it had been closed they would have deposited their money elsewhere, but this is very different from the bank’s suffering a loss.
Instruction No. 3 as asked for by the plaintiff read:
“The court instructs the jury that the burden is upon the defendants to prove by a preponderance of the evidence that the bond sued upon was delivered to Mr. Bristow, with *392the express agreement that said bond was to become binding upon the signers thereof, only in event that a loss was sustained by the said bank between the date of the execution of the said bond and the date of the termination of the merger negotiations between The State Bank and The Bank of Louisa, and the burden is also upon the defendants to prove that no loss occurred during said period, and that such evidence must be clear, unequivocal and convincing.” (Italics ours.)
Over the objection of the plaintiff the court struck out the italicized words, and gave the instruction as so amended.
The fourth assignment of error is that the court erred in striking out the italicized words, and in giving the instruction as thus amended.
I think the court did not err in striking out either the word “express” or the clause with reference to the burden of proof.
A delivery upon escrow may arise from, and the terms and conditions of the escrow be fixed by the ‘ acceptance of the delivery of an instrument under facts and circumstances, known to the acceptor of the delivery, which show that the deliverer intended to deliver it only in escrow and the terms and conditions of the escrow upon which he intended to deliver it.
My view with reference to the burden of proof is this: Where the depository of a bond alleged to have been held in escrow, who has made delivery thereof to the obligee, denies that he held it in escrow, and testifies that he delivered it without reference to whether the terms of the alleged escrow have been complied with or not, the burden rests upon the party seeking to establish the escrow to prove that it was delivered in escrow; but when this has been proven, the burden rests upon the obligee in possession thereof to establish that the terms of the escrow have been complied with. Under such circumstances no presumption arises from the possession of the instrument that it was validly delivered. See on this subject 21 C. J. par. 43, pp. *393894-5; Black v. Shreve, 13 N. J. Eq. 455, 459; Cogswell v. O’Connor, 13 N. S. 513.
There are some other assignments of error, but I think none of them are well made.
My view is that the judgment of the trial court should be affirmed.
The bond is dated October 14, 1930. The board of directors of the Louisa bank on November 29, 1930, definitely rejected the Columbia bank’s proposal to merge. Mr. Bristow closed the Columbia bank on December 11, 1930.
The Bank of Columbia had a branch.
The other defendants also testify to this same effect.
On October 11, 1930, Mr. Bristow had written to Mr. S. W. Shelton the letter quoted in the opinion of the court.