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.
Whether the obligor can deliver to one who is the agent of the obligee and in making such delivery can impose such conditions as to make a delivery in escrow, is a question upon which there is a conflict of authority. In some jurisdictions an agent of the obligee may hold in escrow wherever the acceptance by him of the agency of escrow involves no violation of duty to his principal.1 Thus a deed delivered to an attorney of the grantee with a written memorandum signed by the grantor, setting forth the terms on which such deed was to be delivered to the grantee, is an escrow.2 So a delivery of a bond to the agent of the obligee under an agreement on his part not to surrender it to the obligee until twelve more names have been added, is delivered in escrow.3 In other jurisdictions it is said that a delivery to the agent of the oblige is in legal-effect an absolute delivery to the obligee himself, and can not be a delivery in escrow.4 So it has been held that a promissory note cannot be delivered in escrow to the agent of the payee.5 This last principle applies on where delivery is to the grantee's agent in his capacity of agent. The fact that a grantee under a deed delivered in escrow has paid the depositary to represent him under certain conditions, does not make the depositary his agent or attorney, so that a delivery to him is a delivery to the grantee.6 The divergence of authority as to the power of an agent of the obligee to hold in escrow is in part a special application of conflicting views entertained by different jurisdictions upon the question whether the obligee himself can hold in escrow or not.7 In some jurisdictions, however, which deny that an obligee may hold in escrow, it is held that an agent of the obligee may so hold if the duties of a depositary in escrow are not inconsistent with those of agent.8
7 Bean v. Trust Co., 122 N. Y. 622; 26 N. E. 11.
8 Walker v. Bamberger, 17 Utah 239; 54 Pac. 208.
9 Porter v. Metealf, 84 Tex. 468; 19 S. W. 696.
10 Belding Savings Bank v. Moore, 118 Mich. 150; 76 N. W. 368.
11 Fred v. Fred (N. J. Eq.), 50 Atl. 776.
12 School District v. Sheidley, 138 Mo. 672; 60 Am. St. Rep. 576; 37
L. R. A. 406; 40 S. W. 656.
1 Stockton, etc., Society v. Gid-dings, 96 Cal. 84; 31 Am. St. Rep. 181; 21 L. R. A. 406; 30 Pac. 1016.
2 Shaw v. Camp, 160 Ill. 425; 43 N. E. 608; affirming 61 Ill. App. 62; Enneking v. Woebkenberg, 88 Minn. 259; 92 N. W. 932; Merrill v. Hurley, 6 S. D. 592; 55 Am. St. Rep. 859; 62 N. W. 958.
3 Connecticut Indemnity Association v. Grogan's Administrator (Ky.), 52 S. W. 959.
1 Deed. Watkins v. Nash, L. R. 20 Eq. 262; Ashford v. Prewitt, 102 Ala. 264; 48 Am. St. Rep. 37; 14 So. 663; Southern, etc., Co. v. Cole, 4 Fla. 359; Cincinnati, etc., R. R. v. Iliff, 13 O. S. 254; Merchants' Ins. Co. v. Nowlin (Tex. Civ. App.), 56 S. W. 198; contract, Humphreys v. Ry., 88 Va. 431; 13 S. E. 985.
2 Ashford v. Prewitt, 102 Ala. 264; 48 Am. St. Rep. 37; 14 So. 663.
3 Fertig v. Bueher, 3 Pa. St. 308.
4 Deed, Duncan v. Pope, 47 Ga. 445; Hubbard v. Greeley, 84 Me. 340; 17 L. R. A. 511; 24 Atl. 799; Bond v. Wilson, 129 N. C. 325; 40 S. E. 179.
5 Stewart v. Anderson, 59 Ind. 375.
6 Dixon v. Bank, 102 Ga. 461; 66 Am. St. Rep. 193; 31 S. E. 96.
7 See Sec. 595-596.