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.
A written contract which is not required by law to be proved by writing, or to be in writing, is of no effect unless it is delivered, unless there is a valid oral contract between the parties, intended by the parties to be effective before delivery. Thus, a written subscription to a corporation is of no validity unless it is delivered.1 A made a mortgage to B to secure a loan made by X. B took no part in the transaction, and did not know of the existence of the mortgage. It was held that such mortgage was not delivered, and never took effect.2 So a deed which has not been delivered is of no validity,3 and may be cancelled in equity.4 Accordingly, where a corporation has executed a written contract, the true date of the contract is the date of the execution and delivery, and not the date of the resolution of the corporation.5 So, if a due bill is signed and retained by the person signing it, no delivery exists, and it never takes effect.6 If delivery is necessary to give the contract validity, the instrument cannot be delivered after the maker's death.7 Thus, A executed a note payable to B, and told B that he had done so. B never saw the note, and on A's death it was found among his papers. It was held that there was no delivery.8 So an indorsed note cannot be delivered after the death of the indorser so as to put his contract into effect.9
2 Wilbur v. Stoepel, 82 Mich. 344; 21 Am. St. Rep. 568; 46 X. W. 724.
1 Davis v. Kneale, 103 Mich. 323; 61 X. W. 508; s. c, 97 Mich. 72; 56 X. W. 220; White v. Crosly (Tex. Civ. App.), 51 S. W. 350.
2 Shirley v. Burch, 16 Or. 83; 8 Am. St. Rep. 273; 18 Pac. 351.
3 Gore v. Dickinson, 08 Ala. 363; 39 Am. St. Rep. 67; 11 So. 743.
4 Gore v. Dickinson, 98 Ala. 363;
39 Am. St. Rep. 67; 11 So. 743.
5 Keystone, etc., Co. v. Bates, 196 Pa. St. 566; 46 Atl. 887.
6 Cann v. Cann, 40 W. Va. 138; 20 S. E. 910.
7 Michigan Ins. Co. v. Leavenworth, 30 Vt. 11.
8 Purviance v. Jones, 120 Ind. 162; 16 Am. St. Rep. 319; 21 X. E. 1099.
9 Clark v. Sigourney, 17 Conn. 511; Clark v. Boyd, 2 Ohio 56.