#### The Michigan Life Ins. Co. v. Wm. H. Beaver.

Negotiable Instruments—Non-Delivery as a Defense—Note—Agency— Conflict of Evidence—Question for Jury.

1. Where the issue is one of fact, touching the delivery or non-delivery of a promissory note through an agent, the extent of his authority to contract is not involved.

2. It is the province of the jury to decide questions of fact, and where the evidence is conflicting, this court will not interfere with their verdict.

[Opinion filed November 18, 1887.]

Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.

Mr. J. S. Ewing, for appellant.

Messrs. Joseph W. Fifeb and Thos. F. Tipton, for appellee.

Pleasants, J.

This was an action of assumpsit, brought by appellant upon a promissory note made by appellee, of February 8, 1886, for <jj>116.81, payable nine months after date *350to the order of appellant at the People’s Bank of Blooming-ton, claimed to have been given for an endowment policy of appellant on his life for §3,000. Pleas of non assumpsit and non est faotmn, both verified by affidavit, were filed, and there was a stipulation that any proper defense might be shown as if specially pleaded. Verdict and judgment for defendant.

The defense was that the note was never delivered; that it was left with F. A. Niles, plaintiff’s agent at Bloomington, upon an express agreement with him that it was not to be delivered to the company, but was to be held by him and paid out of certain commissions which were expected to accrue to the defendant in his hands, or, in default of payment by such means before or at maturity, to be surrendered to the defendant and his policy canceled. Appellee positively testified that such was the agreement; that Niles was to have him made a member of the local board of control of the company for McLean County, which would be entitled to a commission of fifteen per cent, on all new policies he should write, and of two per cent, on all the company’s old insurance in that county; that the board was not organized as promised; that in May or June following Niles removed from the county to Cedar Bapids, Iowa; that upon learning his residence defendant, on the ISth of October, 1886, sent him the policy and demanded the return of the note; that it was afterward sent by the company to an attorney at Bloomington for collection, and this suit brought thereon.

Niles denied that any such agreement or arrangement was made with him, and represented the transaction as in all respects legitimate in substance and regular in form.

The attorney referred to testified that after he received the note appellee promised him to pay it in certain installments specified, but this was denied by appellee, who stated that a proposition so to pay it was made to him, and distinctly de7 dined.

These questions of fact it was the province of the jury alone to decide, upon this conflict of evidence. They must have found them for the defendant, and with their finding, under the circumstances, we have no right, if we had the disposition, to interfere.

*351What we are to determine is whether the facts so found, without proof of notice thereof to the company, would constitute a good defense to this action. It does not involve any question as to the consideration of the note, or the right to vary its terms by parol, or the authority of Hiles to bind the company by such an agreement as is claimed to have been made, but simply whether the note sued on was delivered to the company by the maker or by his authority. Such delivery was necessary to make the promise obligatory upon him in favor of the payee, who brings this suit. Without it there is no contract between the parties. Whatever may have been the extent or limit of Hiles’ authority as agent of the company, and however well it may have been known to appellee, he is not bound except in the manner and to the extent he contracted to be, and not at all if he did not contract to be. The innocence of the company can not change the fact or the effect of delivery or non-deiivery, as the case may' be; and that such fact is provable by parol, and that non-delivery is a good defense in an action like this, are settled by many authorities, of which we cite only the cases in this State, of Biederman v. O’Conner, 117 Ill. 493; Jordan v. Davis, 108 Ill. 336; O. O. & F. R. V. R. R. Co. v. Hall, 1 Ill. App. 612. The judgment will be affirmed.

Judgment affirmed„

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