Dissenting Opinion.
Wiley, J.I am unable to agree with my associates either in the conclusion reached in the majority opinion, or in the reasoning leading thereto, and owing to the importance of the question involved, I have concluded to express my views in a dissenting opinion. The facts upon which the decision of the questions involved must rest are fairly and fully stated in the majority opinion, and need not be repeated here.
To entitle appellee to a recovery, it must affirmatively appear from the facts specially found that the note in con*16troversy was in fact delivered. I do not need to pause to enlarge upon this elementary proposition, or to cite authorities in support of it.
Counsel for appellant have insisted, and argued at some length, that parts of the special finding of facts are conclusions merely, and not statements of substantive, issuable facts. ' I do not deem it important to determine whether or not some conclusions are stated as facts, for it is the rule in this State that if the special findings contain sufficient facts to warrant the conclusions of law stated thereon, such special findings will not be deemed to be defective because they may state some evidentiary facts or conclusions of law. In such event the latter will be treated as surplusage. Baldwin v. Threlkeld (1893), 8 Ind. App. 312; City of Indianapolis v. Kingsbury (1885), 101 Ind. 200, 51 Am. Rep. 749; Whitcomb v. Smith (1890), 123 Ind. 329.
The decisive question is whether the ultimate facts found are sufficient upon which to rest the conclusions of law; or, in other words, whether the conclusions of law are warranted by the ultimate facts. If the facts show that there was a delivery of the instrument sued on, either actual or constructive, then they are sufficient to support the conclusion of law that appellee is entitled to recover. On the contrary, if the facts do not show the execution of the note, which includes a delivery, then the conclusions of law are wrong. Palmer v. Poor (1889), 121 Ind. 135, 6 L. R. A. 469; Anderson v. Anderson (1890), 126 Ind. 62; 4 Am. and Eng. Ency. Law (2d ed.), 201, and authorities there cited.
The special findings, on the question of the delivery, go only to the extent that it was the intention of the decedent to deliver the note to appellee, and that at the time of his death he left it in a certain box, among the papers of the appellee, for her use and benefit. In addition is the following: “And the court further finds that at the time of the death of decedent said note was held by decedent as *17trustee and agent of claimant for her use and benefit, and not for the benefit of the decedent individually.” The additional facts that have any bearing upon the question at issue are stated in the fifth finding, to the effect that the decedent, as an agent of appellee, had possession and control of the note until the day of his death, and that “except as herein stated,” he never surrendered the same to appellee or any person for her use and benefit, and that she never had any control or power over it, or had it in her possession. This finding must be construed in connection with those that precede it, in which it is stated that the decedent held the note as the agent and trustee of appellee, and placed it in the box for the purpose and intention of delivering it to her.
Do these facts constitute a delivery of the note? This inquiry must be answered, in my judgment, in the negative. There is no finding that the decedent ever parted with the note, that he ever delivered it to the appellee, or that he ever delivered it to a third person for her use and benefit, or to be by such person delivered to her. These facts show that he never surrendered dominion over the instrument. This being true, he could have destroyed it at any time, for he had it in his possession to the hour of his death.
Tiedeman, Commercial Paper, §34, lays down the rule, that so necessary is delivery to the life of a bill or note that, if it is found among the papers of the drawer or maker at his death, it can not be sued on by the payee. He further states the rule to be in such case that the personal representative can not make an effectual delivery of it. A case directly in point upon the first proposition above stated by Mr. Tiedeman is that of Disher v. Disher (1712), 1 P. Wms. 204. See, also, the case of Smith’s Executors v. Wychoff (1845), 3 Sand. Ch. 84.
The findings show that the decedent was the agent for appellee for certain specific purposes, and these were that as such agent he had been for a number of years, and up to the time of his death, “loaning and reloaning, and investing *18and reinvesting, her money in the purchase of stocks, bonds, notes and other securities.” This fixes and. limits his authority as appellee’s agent, and, so far as the findings show, he possessed no other power or authority whatever.
It is clear that there was no delivery of the note to the payee, and, if there was in fact a delivery, it was delivered by the maker to himself, as agent or bailee for the use and benefit of appellee. This suggests the inquiry: Can an agent deal with himself so as to make the delivery of his own note to himself, as agent, effective for the benefit of the payee? The authorities answer this inquiry in the negative. Plechem, Agency, §§66, 68, 355, 368, 375, 467; Hatton v. Jones (1881), 78 Ind. 466; Reinhard, Agency, §54.
In Hatton v. Jones, supra, the court said: “We do not think that a person could appoint himself as trustee and then make a valid delivery of his own property to himself as such trustee; or that an intention or promise to give would make a perfect gift so as to constitute the intender or promisor a trustee for the use of the intended or promised beneficiary.”
Upon the question of delivery, the Supreme Court, in Purviance v. Jones (1889), 120 Ind. 162, 16 Am. St. 319, said: “That an instrument is not complete and effectual until it has been delivered, or until that has been done which is legally equivalent to a delivery, is elementary. * * * To constitute a delivery it must appear that the maker, in some way, evinced an intention to make it an enforceable obligation against himself, according to its terms, by surrendering control over it, and intentionally placing it under the power of the payee, or.of some third person, for his use. * * * The final test is, did the maker do such acts in reference to the deed, or other instrument, as evince an unmistakable intention to give it effect and operation, according to its terms, and to relinquish all power and control over it in favor of the grantee or obligee?” The rule *19there declared is decisive of this cáse. There is not a fact found that even tends to disclose that the decedent did any act or acts in reference to the note that evinced an unmistakable intention to give it effect and operation, or to relinquish all power and control over it in favor of the appellee.
In his discussion of the necessity of the'delivery of a written instrument, so as to give it validity, Mr. Daniel declares the rule to be that so long as a note remains in the hands of the maker it is a nullity. 1 Daniel, Negotiable Inst. (5th ed.), §63; Bayley v. Taber (1809), 5 Mass. 286, 4 Am. Dec. 57; Marvin v. M'Cullum (1822), 20 Johns. 288; Freeman v. Ellison (1877), 37 Mich. 459; Smith v. Foster (1860), 41 N. H. 215; Dexter Savings Bank v. Copeland (1885), 77 Me. 263; McFarland v. Sikes (1886), 54 Conn. 250, 7 Atl. 408, 1 Am. St. 111.
Also, that, even though it be placed by the maker in the hands of his agent for delivery, it is still undelivered as long as it remains in his hands and may be recalled; and while there the payee has no right to it unless it be wrongfully withheld by the agent. The author cites many authorities in support of the proposition, to which reference is made. 1 Daniel, Negotiable Inst. (5th ed.), §63. Again, the same author says in the above section: “So essential is delivery, that it' has'been held that where a promissory note, the writing of which was unknown to the payee, lay in the maker’s possession, and was found among his papers after his death, the payee could not claim or sue upon it; and though such a note should be found, accompanied with written directions to deliver it to the payee, the payee will still have no right of action, unless the directions be valid as a testament.” No pretense is made in this case that the payee of the note — appellee—knew that it was in existence until after the death of the maker, and she never had it in her possession, or exercised any control or dominion over it.
Mr. Daniel also lays down the rule that if the party who has signed or indorsed the instrument die before delivery *20it is a nullity, and can not be delivered by his personal representatives. 1 Daniel, Negotiable Inst. (5th ed.), §64.
The following authorities support the text: Clark v. Boyd (1825), 2 Ohio 56; Clark v. Sigourney (1846), 17 Conn. 511; Bromage v. Lloyd (1847), 1 Exch. 32; Drum v. Benton (1898), 13 App., D. C., 245.
To constitute the delivery of a deed, there must be an intention of the vendor to part with the control over it as its owner. Berry v. Anderson (1864), 22 Ind. 36. In Hotchkiss v. Olmstead (1871), 37 Ind. 74, the court said: “To constitute a delivery, there must be an intention to part with the control over the instrument, and place it under the power of the grantee, or some one for his use.”
A man signed and acknowledged deeds, conveying his real estate to three sons, put the deeds in envelopes, and placed the envelopes in a box on a mantel in his room. He afterward stated to a third person that he did not have any land, that he had conveyed it to his sons, and that one son had his deed, and that the deeds for the other two sons were in a box for them. After his death the deeds to his two sons were not found in the box where he said he put them. It was held there was no delivery.
In Osborne v. Eslinger (1900), 155 Ind. 351, 80 Am. St. 240, the following facts were exhibited: A grantor signed and acknowledged certain deeds and placed them in an envelope with her name and the words “Deeds to Children” indorsed thereon. She kept them in her possession for about two years, and then handed a package containing the 'deeds to an aged relative, who lived with her, and intrusted -her to take care of the papers until after her death, and then deliver them to the one who was to settle her estate. She afterward took possession of the package and placed them in a press in her house, saying to a relative: “In case I get sick, you take care of these papers, and when I die give them to the one who settles my estate.” Soon afterward she became sick, and called the relative to her *21bedside and asked her if she had taken charge of the papers, and being informed that she had, said: “All right.” The custodian of the package did not know what it contained, but, after the death of the grantor, delivered the deeds to the grantees therein named. The Supreme Oourt, upon these facts, held there was no delivery. See, also, Fifer v. Rachels (1901), 27 Ind. App. 654.
It is clearly discernible from the authorities that, to constitute a delivery of a deed, there must be a complete surrender and parting with control of the same by the grantor, and it must pass under the power and control of the grantee or some one in his behalf.
The rule is equally as strict in regard to the delivery of promissory notes. In Palmer v. Poor, supra, it was said: “Delivery is a part of the execution of a promissory note, and until delivery it is destitute of force.”
In Bean v. Bean (1902), 71 N. H. 538, 53 Atl. 907, securities were left by a decedent in an unsealed envelope in his wife’s possession; oh the envelope, in the handwriting of the decedent, was the statement: “The Property of Electa C. Bean [wife] and Emma R. Mead [daughter] the securities were certificates of stock and savings-bankbooks, which they described in detail; the daughter knew nothing of the package until after the death of her father; the stocks and bank-books were not assigned; the decedent had previously caused to be transmitted to his wife and daughter certificates of other corporations. Under these facts it was held that there was no delivery of the securities, and hence no gift.
In Cutting v. Gilman (1860), 41 N. H. 147, it is said arguendo: “Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel, and without actual delivery the title does not pass.”
In Streissguth v. Kroll (1902), 86 Minn. 325, 90 N. W. 577, it was said: “The delivery of a written instrument is one of intention, and, to constiute a complete delivery *22thereof, it must be made in a manner evincing an intention to part presently and unconditionally with all control over the instrument, and thereby give it effect.”
The rule, as I understand it, is without variance, that there can be no delivery, either actually or constructively, of a written instrument, without an intention to deliver on the part of the maker or grantor, for the essence of delivery is the intention of parties, and the intention must be clear that the maker or grantor intended to part with all control and dominion over the instrument. He must put it beyond his control.
Mr. Tiedeman lays down the rule as follows: “In determining what will constitute a sufficient delivery, it is found that the intention is the controlling element.” Tiedeman, Real Prop. (2d ed.), §813, citing authorities.
It is also held that an intention to deliver an instrument, not carried out by the maker, will not be sufficient. In re Crawford (1889), 113 N. Y. 560, 21 N. E. 692, 5 L. R. A. 71; Fifer v. Rachels, supra; Walls v. Ritter, 180 Ill. 616, 54 N. E. 565. So far as I am advised, the unbroken rule is that the retention of the instrument in the possession of the maker or grantor, and his absolute dominion over it, are inconsistent with a delivery thereof.
Again, the question of delivery is a question of fact. It is an ultimate fact, and in this case the burden was upon appellee to establish that fact. In Vaughan v. Godman (1884), 94 Ind. 191, it was said: “The question of delivery is a question of fact to be determined on the evidence. In all disputes as to whether a deed has been delivered, the most important inquiry is to ascertain the intent of the grantor in the act, or several acts, which it may be claimed constituted a delivery. Did he intend to part with all control over the deed ? Did he intend to divest himself of the title and lodge it in the grantee ?”
It is essential to delivery that the minds of both parties should assent, in order to bind them, and if, through in*23attention, infirmity or otherwise, one does not assent, the act of the other is nugatory. 1 Daniel, Negotiable Inst. (5th ed.), §67; Ferguson v. Miles (1846), 8 Ill. 358, 44 Am. Dec. 702; Fonda v. Sage (1866), 46 Barb. 109, 123; Whyte v. Rosencrantz (1899), 123 Cal. 634, 56 Pac. 436, 60 Am. St. 90.
To determine whether the facts specially found will warrant a judgment in favor of appellee, I must apply the rules of law which I have been considering to the facts found. The fact of delivery of the note is not found in terms. The findings in this regard go only so far as to show that the written part of the note, signature and indorsements, were in the handwriting of the decedent; that the.note was left by decedent in a box, in which other papers, bonds, etc., belonging to appellee were kept by decedent; that the note was in a certificate of stock, and an indorsement that it was intended as collateral; that the. note remained in his exclusive possession and control up to the time of his death, and that appellee never had possession of it or dominion over it; that the note was placed in the box by the decedent “with intent to deliver the same to claimant;” that decedent was the agent of appellee to loan and invest money for her; that he held such note “as trustee and agent of claimant and for her benefit, and not for the decedent individually;” that he had never, “except as herein stated,” surrendered the same to “claimant or to any other person for her use and benefit.” It is also found as a fact that during all the years decedent was acting as appellee’s agent he made annual statements to her of the business he had transacted for her as such agent, and the last three statements, covering the years since the date of the note, are set out in full. These statements speak for themselves, and it is a significant fact that none of them make any mention of the note in controversy, while all other transactions are itemized. In none of the last three statements is the amount of the note required to balance the account between them.
*24The statement of January 1, 1899, shows that he had securities and cash of-hers, aggregating $24,295. January 1, 1900, $25,625, less cash overdrawn, $404; and January 1, 1901, $26,362, which included $858 in cash. The statement of January 1, 1899, showed that he held for her seventeen notes, that of January 1, 1900, fifteen notes, and that of January 1, 1901, thirteen notes. It is a strange coincidence that the decedent had the note in suit in his possession, and considered it a binding obligation against himself, and never mentioned it when rendering to appellee an account of his stewardship. The fact is apparent that the de: cedent accounted for all the money and securities of appellee, in his possession, and under his control.
There is but one finding that can possibly be tortured into a finding of the ultimate fact of delivery, and that is the fourth, and the effect of that is that decedent, as “trustee and agent,” held the note for appellee. The word “trustee” adds no force to the finding, for not a fact is stated which constituted decedent a trustee. Under the statute appellant was entitled to prove all defenses to the action, except set-off and counterclaim, without answer. §2419 Burns 1901, Acts 1883, p. 151, §11. Under the statute, therefore, the plea of non est factum was in, and appellee was required to prove the execution of the note, and this includes delivery. As I have shown in a former part of this opinion, decedent could not constitute himself appellee’s agent, for the purpose of delivery to himself as such agent his own individual note. lie could not execute his own note to himself, as agent for appellee, without her knowledge or consent, and, as he could not, it was not executed.
If appellee’s theory is correct, then an agent who has authority to loan his principal’s money and take notes for it could sua sponte, execute his own note to himself, or, in other words, contract with himself, and thus use or dissipate his principal’s money, and yet not be guilty of embezzlement, although utterly insolvent.
*25In the case before ns the fact is established that the decedent signed the note and delivered it to himself as appellee’s agent. So far as its execution is concerned he did no more. He, was in absolute control and possession of it. The payee was ignorant of its existence so far as the facts show. ISTo indebtedness is shown to have existed from decedent to appellee. He could have destroyed or recalled the note at any time before his death, without doing any unlawful act, or rendering himself liable for its destruction. The findings show that he intended the note for appellee, but. an unexecuted intention is not effective. The special findings do not show a delivery of the note, and as delivery was an essential fact in its execution, the findings are insufficient to support the conclusions of law.
There can be no presumption in favor of appellee on the question of delivery, and, even if there could be, such presumption could not control the failure of the findings to show affirmatively a delivery, in the face of the burden resting upon appellee. Galpin v. Page (1873), 18 Wall. 350, 21 L. Ed. 959.
The judgment should be reversed, and the court below directed to restate its conclusions of law and render judgment for appellant.