Whether the failure or omission of the depositary in escrow to deliver the instrument to the party entitled to it when the conditions of the deposit in escrow have been complied with defeats the rights of the parties under the instrument, is a question upon which there is a conflict of authority. In some jurisdictions it is held that at the instant that the conditions of the delivery in escrow are complied with, the party so complying has a right to the possession of the instrument, and the act of the depositary in withholding such delivery cannot affect his rights.1 In other jurisdictions, it is held that the party who has a right to such instrument cannot maintain an action thereon until it is delivered to him.2