Actual delivery exists when the written instrument comes under the control of the obligee. This usually involves a change of physical possession. While the obligor by person or agent usually delivers physical possession to the obligee, this is not necessary. A manager of an insurance company put upon his desk a policy on the life of a solicitor which had been issued by the company. He intended the solicitor to take the policy, as it was his custom to deliver policies by leaving them upon his desk for the solicitor to take and deliver when the premium was paid or arranged for. The solicitor took this policy in the absence of the manager. It was held to be a valid delivery.1 Even change of physical possession is not necessary. A made out a note to his daughter B, for a valuable consideration, in her presence. The note was thus for a time under her control. With her assent A deposited the note in a separate pocket of a note-case in A's safe in the bank.
1 Streissguth v. Kroll, 86 Minn. 325; 90 N. W. 577.
2 Salley v. Terrill, 95 Me. 553; 85 Am. St. Rep. 433; 55 L. R. A. 730; 50 Atl. 896.
3 Palmer v. Poor, 121 Ind. 135; 6 L. R. A. 469; 22 N. E. 984.
1 Massachusetts, etc., Association v. Sibley, 158 Ill. 411; 42 N. E. 137; affirming 57 Ill. App. 246.
This was held to be a valid delivery.2 The same principle applies where a deed is executed in the grantee's presence and is for the time being under grantee's control.3 A deposit of a contract in the mail, for transmitting to the obligee, with the intent that it shall thereby take effect, amounts to a delivery.4 Hence, if the obligee dies after the contract is so deposited, but before it reaches him, the contract is in full force and effect.5 It has, however, been held that a bank-check which is mailed to the payee, but is never received by him, remains the property of the sender.6