On Petition for a Rehearing.
McBride, J.Out of deference to the evident sincerity of appellants’ counsel in their exceedingly vigorous petition and brief asking for a rehearing, we have again carefully examined the entire record.
The principal controversy was on the issue raised by the plea of non est factum, the appellants insisting that the note sued on, while signed, was never delivered, and, therefore, never fully executed; that the appellee never saw or had possession of the note; that it was placed in the hands of a third party, to be held until a certain agreement was performed; that the agreement in question was never complied with, and that the note was thereupon not delivered to the appellee, but was returned to the appellants.
Delivery is an essential part of the execution of a promissory note. Until it is delivered it has no existence as a valid and binding contract.
It is not essential, however, that there be an actual manual passing of the note. Delivery may be constructive, and yet as effectual to pass title as if it were actually placed in the hands of the payee. Daniel on Negotiable Instruments, section 63.
In the case at bar, while many of the facts connected *422with the alleged executiou of the note in controversy were undisputed, there was controversy over other and material facts bearing upon that question. The determination of these facts rested with the jury, under the instruction of the court.
Filed November 28, 1892.If this finding had been favorable to the appellants, under established rules of practice, this court could not have-disturbed the finding. The finding, however, was adverse to them, and the same reasons which would have denied interference in the one case binds our hands here.
"We can find nothing in the record to justify the granting of a rehearing upon any of the grounds urged in the-, petition, and therefore it is overruled.