ON MOTION FOR REHEARING. In the motion for rehearing it is urged that the note, after its execution was delivered to Mills before he and defendant went to plaintiff bank. Defendant testified: "The note was made out in Mr. Toon's restaurant; we went down to the Bank of Hollister, and Mills says to Charley Moore (plaintiff's president), Moore, I have got Mr. O'Brien's note here for $500, and his son-in-law's note for $250;' he says, `I have given Mr. O'Brien an extension *Page 1282 of three months on the two notes to accommodate Mr. O'Brien;' he says, `will that be all right with you?' Charley Moore took the note, read it over, he says, `yes, that will be all right, sure that will be all right' I had the receipt for the note. I says to him (Moore), `Here don't you want to put that with the note, file it away?' He looked it over and said that, `I expect you ought to keep this, Mr. O'Brien.' Charley Moore said that, `Hadn't they, Mr. Mills?' — addressing the agent; he said, `Yes, you just keep that. Mr. O'Brien,' and he handed it back to me. Then I made the remark to Charley Moore there; I said, `Now, Charley, unless this store goes in according to contract and my son-in-law is made manager of this store,' I said, `Remember this note of mine don't go.' This man, Mills, he said, `Well, Mr. O'Brien, this a foregone conclusion,' he said, `Your son-in-law is going to be made manager of the store.' . . . Q. I would like for the witness to tell what he done with the note? A. I already told you I delivered it to Mills, and Mills and I went to the bank and he gave it to Moore and asked him if that would be all right with the extension of time on there, and Moore said sure it would be all right, and held it in his hand. Q. What was said down there at the bank about the note being held in the bank with the understanding that the note was to be held in escrow there? A. Moore was there; Mills was there, and I was there, and we turned the note into the bank with the understanding that the note was to be there in escrow."
The answer last stated was, on motion, stricken out on the ground that it was a mere conclusion of the witness as to whether the note was left in escrow in the bank. Defendant was again asked: "Q. Tell the jury what was said about the notes staying there in the bank? A. The notes were put there in the bank in escrow until such time" — The witness was here interrupted with another question, and defendant again moved that the escrow reference be stricken and it was ordered stricken. Defendant's counsel endeavored many times to have defendant testify that the note was merely left in escrow in the bank, but was blocked by the ruling that such evidence would be a mere conclusion. After all efforts to get this evidence in defendant repeated as to where the note was signed, etc., and then stated: "Immediately after the note and receipt was executed we took the note and receipt down to the bank. He (Mills) carried the note in his fingers like that; I carried the receipt in my fingers, for the reason we had no blotter to blot them with; we carried them that way so not to blot them till we got to the bank. (Italics ours.) Witness again went over what was said when they arrived at the bank, and stated that the note was to remain in escrow until the store contract was fulfilled. The escrow reference was again stricken. Counsel shifted the position of the word escrow and asked; "When you placed the note in escrow, what was said about it? The note *Page 1283 was put in there, given to Moore, and I told him then, I said, Now, Moore, unless this store is put in here according to contract and my son-in-law is made manager of the store, this note of mine don't go."
The issue on delivery was submitted and properly so in the instructions. It was perhaps correct for the court to rule as it did respecting the statement of defendant that the note was placed in the bank in escrow. But if the note was placed in the bank and there to remain until the store was put in and the son-in-law made manager, then it was placed in escrow and was not in a legal sense delivered to Mills or the bank either. The mere fact that Mills carried the note "in his fingers" from the restaurant to the bank is not conclusive that the note was delivered in the legal sense. It is true that defendant said that he "delivered the note to Mills and Mills and I went to the bank." But this has reference to the occasion when Mills carried the note "in his fingers" from the restaurant to the bank. If the note was delivered in a legal sense, then why should Mills and defendant go to the bank together and there, in the presence of Mills, defendant tell plaintiff's president Moore the conditions upon which the note was executed, and that unless these conditions were fulfilled "this note of mine don't go?"
If defendant's version is the correct one, and the jury so found, then the note was not delivered in the sense that title passed as we held in the original opinion.
We find no reason to disturb our original ruling. The motion for rehearing is, therefore, overruled. Cox, P.J., and Bailey,J., concur.