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.
On the other hand, an instrument may be delivered to one who is the agent of the maker and yet he may not take in his capacity of agent. A executed a note, placed it in an envelope, sealed the envelope, and marked it with the initials of the payee, and delivered it to A's domestic servant, with instructions to be sure that the payee got it at A's death. It was held that unless A had reserved the right to recall such note this was a good delivery in escrow, and could be delivered by such servant to the payee after A's death. A verdict finding that this was a delivery in escrow was sustained.1 A executed a deed and delivered it to his housekeeper, with instructions to deliver the deed to his son at A's death. This was held to be a valid delivery in escrow if A had no right to recall the deed. The fact that the houskeeper subsequently put the deed in A's trunk for safe-keeping did not invalidate such delivery.2 A's intention to put the deed beyond his recall by such delivery was held to be shown from the fact that he did not try to recall it, and also from the fact that he made such delivery after receiving an opinion from his attorney that such delivery would be valid, and would be binding upon A. A grantor who has sold land through a real estate agent may deposit the deed to the property sold in escrow with such agent.3 So, if an application is made for insurance, under a contract that if the application for insurance is accepted the insurance will take effect from the time of the application, and the application is accepted, and the policy is forwarded to the agent of the insurance company with unconditional instructions to deliver to the insured, such policy takes effect, even though the manual possession of the policy is not surrendered by the agent to the insured.4 This principle insurance company of the truth of the statements in the application,11 or where it is held by the insurance company's agent, pending the approval of the company of the risk,12 even if it has been exhibited to the agent of the insured, no delivery exists.
7 Stricklin v. Cunningham, 58 Ill. 293; Bank v. Bornman, 124 Ill. 200; 16 N. E. 210; Coffman v. Wilson, 2 Mete. (Ky.) 542; Jackson v. Cooper (Ky.), 19 Ky. Law Rep. 9; 39 S. W. 39; Williams v. Luther (Ky.), 17 Ky. Law Rep. 311; 30 S. W. 199; Dunn v. Smith, 12 Smedes & M. (Miss.) 602; Bead v. McLe-more, 34 Miss. 110; Hill v. Sweetser, 5 N. H. 168; Cowan v. Baird, 77 N.
C. 201; Large v. Barker (Tex. Civ. App.), 56 S. W. 587.
1Furenes v. Eide, 109 la. 511; 77 Am. St. Rep. 545; 80 N. W. 539.
2 Clark v. Campbell, 23 Utah 569; 90 Am. St. Rep. 716; 54 L. B. A. 508; 65 Pac. 496.
3 Miller v. Sears, 91 Cal. 282; 25 Am. St. Rep. 176; 27 Pac. 589; Nichols v. Opperman, 6 Wash. 618; 34 Pac. 162.
1 Daggett v. Simonds, 173 Mass. 340; 46 L. R. A. 332; 53 N. E. 907.
2Munro v. Bowles, 187 Ill. 346; 54 L. R. A. 865; 58 N. E. 331.
3 McLaughlin v. Wheeler, 1 S. D. 497; 47 S. W. 816; modified on another point 2 S. D. 379; 50 N. W. 834.
4 Xenos v. Wickham, L. R., 2 H. L. 296; Union Central Life Ins. Co. v. Phillips, 102 Fed. 19; 41 C. C. A. 263; reversing on another ground Phillips v. Ins. Co., 101 Fed.
33; Young v. Assurance Society, 30 Fed. 902; Harrigan v. Ins. Co., 128 Cal. 531; 61 Pac. 99; incorrectly-entitled Harrington v. Ins. Co.. in 58 Pac. 180; Fireman's Fund Ins. Co. v. Pekor, 106 Ga. 1; 31 S. E. 779; New York Life Ins. Co. v. Babcock, 104 Ga. 67; 69 Am. St. Rep. 134; 42 L. R. A. 988; 30 S. E. 273; Medearis v. Ins. Co., 104 la. 88; 65 Am. St. Rep. 428; 73 N. W. 495; Mutual Life Ins. Co. v. Thomson, 94 Ky. 253; 22 S. W. 87; Lee applies even where, by the terms of the contract, the policy is not to take effect until its delivery.5 This holding shows that the court looks upon such facts as amounting to a delivery. In other cases the controlling theory may be that the contract of insurance was effective between the parties, even if no delivery had ever been made. So, if the insured is notified by the agent that the policy is in the hands of the agent subject to his orders, delivery exists even though he does not in fact call for it.6 Thus a policy delivered by the insurance company to its agent under unconditional instructions to deliver to the insured, but retained by the agent until the insured has reimbursed the agent for the premium advanced by such agent, is delivered to the insured so as to take effect.7 If, on the other hand, there is some other and further act to be clone before the policy takes effect, delivery to the agent does not amount to delivery to the insured.8 Thus if the policy is not to take effect until the premium is paid, and such premium has not been paid and payment thereof has not been waived, possession by the agent of the insurance company does not amount to the delivery to the insured.9 So if the insured is not bound to take the policy, but has the right to accept or reject it, delivery to the agent of the insurance company is not delivery to the insured.10 So if the agent does not take under unconditional instructions for delivery, as where he is directed to hold the policy, pending an investigation by the v. Ins. Co. (Ky.), 41 S. W. 319; Dibble v. Assurance Co., 70 Mich. 1; 14 Am. St. Rep. 470; 37 N. W. 704; Newark Machine Co. v. Ins. Co., 50 O. S. 549; 22 L. R. A. 768; 35 N. E. 1060; Porter v. Ins. Co., 70 Vt. 504; 41 Atl. 970. "The agent and the mails were only the vehicles to carry it to him and it was the same thing as if mailed or sent directly to the plaintiff." Hallock v. Ins. Co., 26 N. J. L. 268. 279; affirmed 27 N. J. L. 645; 72 Am. Dec. 379.
5 New York Life Ins. Co. v. Bab-cock, 104 Ga. 67; 69 Am. St. Rep.
134; 42 L. R. A. 88; 30 S. E. 273.
6 Phoenix Assurance Co. v. McAu-thor, 116 Ala. 659; 67 Am. St. Rep. 154: 22 So. 903.
7 Fireman's Fund Ins. Co. v. Pe-kor, 106 Ga. 1; 31 S. E. 779.
8 Bluegrass Ins. Co. v. Cobb, 109 Ky. 339; 58 S. W. 981.
9Jurgens v. Ins. Co., 114 Cal. 161; 45 Pac. 1054; 46 Pac. 386; Griffith v. Ins. Co., 101 Cal. 627; 40 Am. St. Rep. 96; 36 Pac. 113
10 Dicker son's Administrator v. Assurance Society (Ky.) , 52 S. W, 825.