¶1If the consideration of the check as between the defendant and the payee was the price of a pair of horses, which might have been found to have been unsound at the time of sale, yet the plaintiff as indorsee, having taken the check for value and in good faith before it was overdue, and without notice of any infirmity or that payment had been stopped at the bank, became a holder in due course with all the rights appertaining to such a title. B. L. c. 73, § 69. Wheeler v. Guild, 20 Pick. 545, 552, 553. Shawmut National Bank v. Manson, 168 Mass. 425. Massachusetts National Bank v. Snow, 187 Mass. 159. The defendant, while not expressly conceding this, rests his defense solely on the ground, that, because his clerk had no express authority to deliver the check to the payee, it was unlawfully put in circulation, and, the contract being incomplete, no title passed to the plaintiff by its subsequent negotiation. Fearing v. Clark, 16 Gray, 74. Hill v. Hall, 191 Mass. 253, 265. But the check was in the hands of the plaintiff as a holder in due course, and as to him a valid delivery by the defendant was conclusively presumed, even if this defense would have been open as between the original parties. K. L. c. 73, § 33. Massachusetts National Bank v. Snow, 187 Mass. 159, 163. We are, therefore, not called upon to decide, whether there was other *3evidence upon which under suitable instructions the jury could have found either actual or constructive delivery. It accordingly follows, that the ruling requested could not properly have been given, and that the case was rightly submitted to the jury.
¶2 Exceptions overruled.