¶1(dissenting). — When this cause was in the first division an opinion was filed (36 S. W. Rep. 671) which expresses our idea of the case. In view of the full statement of facts in the learned opinion of the majority of the Court in banc, some parts of the divisional opinion need not now be repeated.
¶21. A number of minor points in regard to the procedure in the circuit court have been raised. We shall not touch upon them all, but discuss only those which seem to be finally material.
¶3As plaintiff had possession of the note and filed it, the burden of proof at the trial was upon defendants to establish some one of their defenses.
¶4Though the code of procedure makes no mention of a motion for judgment notwithstanding the verdict, yet it obviously may be resorted to on a proper occasion. If neither the defendants’ evidence at the trial, *304nor their pleadings, disclosed any defeuse to the cause of action stated by plaintiff, it would not serve the ends of justice to grant a new trial, there being really nothing to try, according to the final opinion of the trial judge. In that event the court might properly give its view of the case on a motion such as that plaintiff filed (waiving now the question whether or notit was offered in due season). The filing occurred more than four days after the verdict, and the motion is attacked on that account. But as we consider it untenable on its merits, we forbear ruling on the question of its timeliness.
¶5We also consider it immaterial to decide whether a motion for judgment, notwithstanding the verdict, ’is available where a good affirmative defense appears in the answer, but is not supported by evidence tending to discharge the burden of proof as to that defense.
¶6We entertain no doubt that the testimony offered by defendants tended to prove at least one of the defenses set up in their answer. But as we hold that the judgment should be reversed for a new trial, we prefer to refrain from any comment on the probative effect or weight of the evidence, further than the general statement just made.
¶72. The important and decisive question in the case, raised by the answer, is whether its allegations avoid the prima facie showing of the petition.
¶8The gist of the plaintiff’s contention is that the answer admits the delivery of the note, and that the facts alleged in'connection therewith are legally insufficient to avoid the liability created by the delivery.
¶9The defendants repel that contention with vigor, and the discussion which that issue has elicited has been both entertaining and useful to the court.
¶10It will be noticed that the answer does not precisely admit an absolute delivery. It states that the *305note “was delivered to plaintiff by one E. L. Yeager as hereinafter set forth.” The answer then proceeds to set forth a conditional delivery to Mr. Yeager, and a failure of the condition, the facts of which are fully given.
¶11To simplify the case, as now presented, we shall assume that the conditional delivery was made to plaintiff’s agent (orín effect to plaintiff herself) though there is some question as to whether the facts should be so interpreted. We consider that view of them,however, most favorable to plaintiff, and we will endeavor to apply upon that groundwork the rule of law which we think controls this branch of the casé.
¶12Plaintiff’s learned counsel argue that no condition could be connected with the delivery of the paper to plaintiff’s attorney. They assert that a note can not be conditionally delivered to the payee or to the payee’s agent.
¶13The principles which govern that subject are by no means universally settled. On the contrary, we find not only .conflicting opinions thereon in other states, but a want of harmony in the decisions in Missouri.
¶14The proposition contended for by plaintiff finds support in rulings (or at least remarks) in Massman v. Holscher (1871) 49 Mo. 87; Henshaw v. Dutton (1875) 59 Mo. 139, and (1878) 67 Mo. 666; and Jones v. Shaw (1878) 67 Mo. 667. While in Carter v. McClintock (1860) 29 Mo. 464, it was distinctly held that mere manual delivery of a note to the payee created no liability where the intent to deliver was wanting. In that ■case the doctrine that a delivery of such paper may be conditional is conceded and acted upon.
¶15That decision was cited in State to use of Bothrick v. Potter (1876) 63 Mo. 212, a case' which appears to -assume the correctness of the proposition that delivery *306of a document may be conditional as between, immediate parties. That judgment, -however, asserts that the condition does not bind third persons who, without notice, acquire rights under the document, delivered in violation of the condition, in such circumstances as that case describes. That ruling has been often approved in subsequent cases, and is a leading one on the topic which it treats.
¶16The analogy afforded by the Missouri rulings on conditional delivery of chattels (before the enactment of section 5180, R. S. 1889) tends to sustain the doctrine announced in Carter v. McClintock (1860) 29 Mo. 464, as to controversies between contiguous parties to notes. See Dannefelser v. Weigel (1858) 27 Mo. 45; Little v. Page (1869) 44 Mo. 412; Oester v. Sitlington (1893) 115 Mo. 247 (21 S. W. Rep. 820).
¶17The principle of the Carter ease was also recognized in State ex rel. Moore v. Sandusky (1870) 46 Mo. 377, followed by the second division in Gay v. Murphy (1896) 134 Mo. 98 (34 S. W. Rep. 1091).
¶18Defendants’ answer asserts that the note was to be signed by Mr. Hightower before final delivery, and that Mr. Yeager had full notice of that fact on receiving the paper as custodian.
¶19The true question in such cases is as to the intent of the parties touching the delivery. ■
¶20If the instrument, though complete in form, is incomplete in fact for want of a further signature to be given it, and in that state (pending the last signature) it is placed in possession of the payee (having full knowledge of its incompleteness) with the mutual understanding that the missing signature is to be added, before the note is to be regarded as delivered, the payee can not afterward treat it as delivered, without more, even at law, and still less in equity. Jordan v. Loftin (1848) 13 Ala. 547. To treat it as delivered in its in*307complete condition would be a fraud of the simplest and most obvious character.
¶21This proposition does not infringe upon the valuable and general rule that protects writings from change by oral evidence. It is not even an exception to that rule. Until delivery is complete, the writing does not become operative as a contract between the parties. Rogers v. Carey (1871) 47 Mo. 232. Bare possession of a document can not be made a substitute for its delivery, which involves the expression (in some form) of an executed purpose to deliver. Huey v. Huey (1877) 65 Mo. 689; Scott v. Scott (1888) 95 Mo. 300 (8 S. W. Rep. 161).
¶22"We are writing only of a case in which the issue arises between the immediate parties to such a transaction. That is the case in hand. We shall try to confine our comments within the field of legal view afforded by its record.
¶23Possession of a note by the payee may (unexplained) be competent evidence of its delivery. But the normal inference- from such possession may' be counteracted by proof that no delivery was intended in advance of some event which has not happened. Proof of such a state of facts does not contradict the instrument ; it only shows that the last act necessary to give it life as a contract has not taken place. The paper remains but a paper while the intent essential to put legal vigor into its form is wanting.
¶24It is not needful to inquire’whether possession of a note by the payee, pending another signature (as alleged in the answer), constitutes a holding in escrow. The classification of the act is unimportant as compared- with its legal substance. Whatever name the act may bear can not change the principles regulating its effect. We prefer at this time to avoid any attempt to define an “escrow.”
¶25*308It appears to us that facts are stated in the answer which amount to a defense to the note in suit for want of a full and legal delivery of it.
¶26Ve forbear any further discussion of the subject in view of the thorough treatment it has recently had in the Supreme Court of .the United States in a learned judgment which we fully accept. Burke v. Dulaney (1894) 153 U. S. 234 (since approved in Michels v. Olmstead (1895) 157 U. S. 198).
¶27In addition to the valuable precedents cited in the Burke decision, we refer to a few others having a tendency to support the result we announce. Bell v. Ingestre (1848) 12 Ad. & E. (N. S.) 317; Sweet v. Stevens (1863) 7 R. I. 375; Michels v. Olmstead (1882) 14 Fed. Rep. 219; Westman v. Krumweide (1883) 30 Minn. 313 (15 N. W. Rep. 255); Bank v. Luckow (1887) 37 Minn. 542 (35 N. W. Rep. 434); Bank v. Bornman (1888) 124 Ill. 200 (16 N. E. Rep. 210).
¶28The ruling in Burke v. Dulaney is sustained by the following standard text books, besides those cited in that case: 2 Am. and Eng. Ency. Law [1 Ed.], p. 343; Browne, Parol Ev. [1 Ed.], sec. 68; Byles on Bills [13 Ed.], *p. 103; 1 Greenl. Ev. [15 Ed.], sec. 284; Leake, Contracts [1 Ed.], p. 187; Story, Notes [7 Thorndike’s Ed.], p. 67, note; Taylor, Ev. [8 Ed.], sec. 1037; Tiedeman, Com. Paper [1 Ed.], sec. 34d.
¶29Whatever is said or intimated to the contrary in the' Massman, Henshaiu and Jonescases should not be regarded as any longer authoritative.
¶303. Plaintiff insists that the first defense in the answer is insufficient because the statute of frauds defeats it. Whether that statute (if available to plaintiff) would have that effect, is a proposition we do not take up. It is involved in some doubt, as the discussion in a modern text book indicates. Reed, Stat. Frauds [1 Ed.], sec. 144. But it plainly appears from *309the answer in this case that the agreement (on which the statute is supposed to bear) was oral, and the statute is not set up in the reply as a defense to it. Hence that statute can not be resorted to as a barrier to prevent the enforcement of the promise. Gardner v. Armstrong (1862) 31 Mo. 535; Gordon v. Madden (1884) 82 Mo. 193.
¶314. But the order granting a new trial to plaintiff’ was plainly right. The plaintiff’s eighth refused request for an instruction properly submitted the issue of a ratification of the alleged unauthorized delivery of the note in the form it now has. We do not see that the refusal of that instruction was harmless, and are hence bound to assume that the trial court regarded it as prejudicial to plaintiff, since the verdict was set aside on that account. R. S. 1889, secs. 2240, 2100. Bunyan v. Railroad (1895) 127 Mo. 12 (29 S. W. Rep. 842).
¶32Notwithstanding the fact that the note may have been invalid between the first parties (for want of delivery without the signature. of Hightower), it was competent for those who did sign it to make the delivery their own by duly ratifying it, as they might have made the delivery unconditional in the first place. Leaf v. Gibbs (1830) 4 C. & P. 466; Perry v. Patterson (1844) 5 Humph. 133; Robbins v. Phillips (1878) 68 Mo. 100.
¶33We think the judgment should be reversed and the cause remanded for new trial. We respectfully dissent from any other judgment here.