This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The question as to the existence and nature of delivery may take two distinct forms: (1) has the instrument been delivered in any way by the obligor, so as to take effect at all; and (2) if it has been delivered by him is the delivery one which takes effect at once or is it a delivery in escrow ? These questions will be considered in the following sections. Whether possession of an instrument by the obligee raised a presumption of delivery, raises a question upon which there is a conflict of authority. Possession of a negotiable note has been held to raise a presumption of delivery.1 It has been held that delivery of a non-negotiable instrument cannot be inferred from the mere possession thereof by the obligee.2
14Duffy v. Hobson, 40 Cal. 240; 6 Am. Rep. 617; Bowen v. Byrne, 55 Ill. 467; Hanford v. Obrecht, 49 Ill. 146; Latham v. Smith, 45 Ill. 29; Prather v. Zulauf, 38 Ind. 155; Steeley's Creditors v. Steeley (Ky.),
64 S. W. 642; Sporrer v. Eifler, 1 Heisk. (Term.) 633.
15 Carothers v. Covington (Tex. Civ. App.), 27 S. W. 1040.
1 Garrigus v. Missionary Society, 3 Ind. App. 91; 50 Am. St. Rep. 262; 28 N. E. 1009.