The plaintiff claims that the contract sued upon was, in legal effect, made solely with him, and not with the deputy-sheriff; that it was in legal effect delivered to him when it was delivered to the deputy-sheriff; and that if it was unconditionally delivered, as alleged in the complaint, the plaintiff is entitled to sue upon it as the only party interested. Assuming, for the sake of the argument merely, that this claim is true, one of the important questions in the case is whether the writing sued upon was ever delivered to the plaintiff as a present, operative, binding contract. The delivery was expressly denied in the answer, and was thus one of the issues in the case; and in the judgment of the court the issues are expressly found for the defendant. This alone would support the judgment rendered, unless there is something in the special finding which contradicts this general finding in the judgment. Independently of this general finding, however, we think the judgment rendered is supported by the facts found.
The answer alleged, as an affirmative defense, that the *Page 237 writing was placed in the hands of the deputy-sheriff in escrow, upon this agreement, in substance: If upon the return of counsel for Hayes and Rourke a satisfactory bond or receipt was not furnished, or if the property released was not then in statu quo, the deputy-sheriff should deliver the writing to the plaintiff; but if such bond or receipt was furnished, or said property was then in statu quo, the writing was to be returned to the defendant. It is further set up, in substance, that the property released remained in statu quo as agreed, and that the officer with knowledge of that fact declined to attach it.
We think that the fair import of this part of the answer is that the writing was not to be delivered to the plaintiff as a present, operative instrument, except upon certain events or conditions, which never happened nor existed. We also think that this defense is not only supported by the general finding in the judgment, but also by the special finding. The writing given by the defendant is not what is known as an "officer's receipt," at all. There is nothing on its face or in the circumstances under which it was given, to show that it was necessarily to take effect at once in the hands of the sheriff. He was fully protected by its delivery in escrow. He might then safely release the attachment because, although he had no receipt for the property, he had a paper which at a certain time would become operative as security in place of a receipt, unless a satisfactory receipt were then given, or, if that were not given, unless he had full opportunity again to attach the property and place himself in the position he occupied at first.
The trial court has found what the parties said and did when this writing was signed and handed over to the sheriff, and from the special facts thus found has drawn the conclusion that the writing was delivered in escrow, as set up in the answer. We think the special facts found, read in the light of the circumstances found under which the writing was given, justify this conclusion.
In this view of the case the evidence objected to by the plaintiff, going to show that the released property remained in statu quo, was clearly admissible as tending to prove that *Page 238 one of the conditions upon which the writing was to be delivered to the plaintiff never existed. So, too, the other evidence objected to was clearly admissible to show a conditional delivery, this being a case where the rule invoked by the plaintiff in his objection had no application. McFarland v.Sikes, 54 Conn. 250; Trumbull v. O'Hara, 71 id. 172; Burns Smith Lumber Co. v. Doyle, ibid. 742.
There is no error.
In this opinion the other judges concurred.