they themselves signed unconditionally, for the reason that the paper never took effect as to the conditional maker. (Id.)

A woman delivered to her husband a check signed by her and made payable to a certain creditor, but with the amount left blank, instructing her husband to apply it in payment of her debt, and the husband delivered it to the creditor with the blank unfilled, to be used as a payment upon a debt of his own to the same creditor, and allowed the creditor with his consent to fill in the blank with a certain amount as such payment:- Held, that the check was an incomplete instrument under this section, and that in an action brought by the creditor against the woman for her indebtedness to him, alleged to be unpaid, she could produce evidence to show that, by the authority actually given him, her husband had no right to treat the check as he did or to apply it otherwise than in payment of her debt. Boston Steel & Iron Co. v. Steuer, 183 Mass. 140.

§ 35. Delivery; when effectual; when presumed. Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto (a). As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional (b), or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him. so as to make them liable to him is conclusively presumed (c). And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved (d).

(a) Like other written contracts, a bill of exchange or promissory note has no legal inception or valid existence as such until

it has been delivered in accordance with the purpose and intent of the parties. Burson v. Huntington, 21 Mich. 416. This provision of the statute does not render incomplete a promissory note indorsed in blank by the payee and afterwards stolen from him by the maker and presented by the thief to a bank which discounts it in good faith, because such a note takes effect when delivered by the maker to the payee, and is made payable to bearer by the payee's indorsement in blank before the theft. Massachusetts National Bank v. Snow, 187 Mass. 160.

(b) Thus, as between the original parties, it can be shown by parol evidence that the note although delivered was only to become binding in case the maker sold certain bonds placed in his hands as agent for sale. Hill v. Hall, 191 Mass. 253.

(c) This provision changes the law in some of the States. In some cases it has been held that an instrument in the form of a negotiable promissory note, which has never been delivered by the alleged maker, has no legal existence as such note, and the party sought to be charged upon it may always, unless estopped by his own negligence, defend successfully against it, without regard to the time when or the circumstances under which it was acquired by the holder. Roberts v. McGrath, 38 Wis. 52; Chipman v. Tucker, 38 Wis. 43; Griffiths v. Kellogg, 39 Wis. 290; Burson v. Huntington, 21 Mich. 416. This change, like some others made by the act, is in the direction of facilitating the circulation of commercial paper. The provision does not apply, however, in the case of an incomplete instrument completed and negotiated without authority. See section 34.

(d) Possession of the instrument is prima facie evidence of title. Newcombe v. Fox, 1 App. Div. 389.

§ 36. Construction where instrument is ambiguous.— Where the language of the instrument is ambiguous, or there are omissions therein, the following rules of construction apply:

1. Where the sum payable is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, references may be had to the figures to fix the amount (a);

2. Where the instrument provides for the payment of interest, without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof;

3. Where the instrument is not dated, it will be considered to be dated as of the time it was issued (b);

4. Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail (c);

5. Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election (d);

6. Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser (e);

7. Where an instrument containing the words "I promise to pay" is signed by two or more persons, they are deemed to be jointly and severally liable thereon (ƒ).

(a) The figures in the margin of a bill or note are regarded as simply a memorandum or abridgement for convenience or reference, and form no part of the instrument. Smith v. Smith, 1 R. I. 388; Norwich Bank v. Hyde, 13 Conn. 281; Schreyer v. Hawkes, 22 Ohio St. 308. Where the marginal figures of a bill were 245 1., but the words "two hundred pounds" were written in the body of the instrument, it was held to be for the latter sum. Saunderson v. Piper, 5 Bing. N. C. 425. In Garrard v. Lewis (L. R. 10 Q. B. Div. 30, 32) Lord Justice Bowen, speaking of the import and effect of marginal figures at the head of a bill of exchange, said: They do not seem in general to have been considered among merchants as of the same effect and value as the mention of the sum contained in the body of the bill. The history of these marginal figures may perhaps be shortly summarized as follows:- The first model of a bill of exchange preserved to us, and which dates from 1381, does not, I believe, possess them, though it does possess the nature or vocation with which merchants' bills used generally to commence, and which

usually preceded the figures. The marginal figure at the head of a bill was probably added at a very early date, in order that the amount of the bill might strike the eye immediately, and was in fact a note, index or summary of the contents of the bill which followed."

(b) Kingsley v. Sampson, 100 Ill. 54.

(c) But this rule does not permit of the rejection of any of the printed matter which by any reasonable construction may be reconciled with the written part. Miller v. Hannibal & St. Jo. R. R. Co., 90 N. Y. 430; Magee v. Lovell, L. R. 9 C. P. 107; Joyce v. Realm Ins. Co. L. R., 7 Q. B. 580.

(d) Heise v. Bumpass, 40 Ark. 547. Where the instrument ran "On demand, I promise to pay A. B., or bearer, the sum of fifteen pounds, value received," and was addressed in the margin to one J. Bell, who wrote upon it, "Accepted, J. Bell," it was considered to be in effect the note of J. Bell, as it contained a promise to pay, although, in terms, it was an acceptance. Block v. Bell, 1 'M. & R. 149. Where the instrument was in the following form: "London, August 5, 1833. Three months after date I promise to pay Mr. John Bury or order forty-four pounds, eleven shillings, and five pence, value received, John Bury," and was addressed in the lower left-hand corner "J. B. Grutherot, 35 Montague Place, Bedford Place," and Grutherot's name was written across the face as an acceptance, and Bury's name across the back as an indorsement, it was held that Bury might be held either as the drawer of the bill against Grutherot, or as the maker of the note, and therefore was bound without notice of dishonor. Edis v. Bury, 6 Barn. & Cres. 433. In another case the instrument ran: "Two months after date I promise to pay A. B. or order ninety-nine pounds, H. Oliver," and was addressed to J. E. Oliver and accepted by him. The court said: "It is not unjust to presume that it was drawn in this form for the purpose of suing upon it either as a promissory note or as a bill of exchange." Lloyd v. Oliver, 18 Q. B. 471.

(e) For example, if a person should write his name across the face of a note, he would, under this provision, be deemed an indorser. There are some decisions which hold that in such case he would be deemed a joint maker. It is, perhaps, not very important which view is adopted, so that the rule upon the subject is fixed and certain. Throughout the act it has been the policy to make all irregular parties indorsers. See section 114. In Ger

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mania Nat. Bank v. Mariner, 129 Wis. 544, "A note read: Four months after date the Northwestern Straw Works promise to pay,' etc., and was signed 'The Northwestern Straw Works, E. R. Stillman, Treas.; John W. Mariner.'" Mariner was the secretary of the corporation, duly authorized to sign the note on its behalf:— Held, that the signature of Mariner was not so placed on the instrument as to make it doubtful in what capacity he intended to sign, within the meaning of this section. The Court said: "This provision, by its very terms, applies only to a case of doubt arising out of the location of the signature upon the instrument. Names are sometimes placed at the side, on the end, or across the face of the instrument, and thus a doubt arises as to whether the signer intended to be bound as a maker or indorser, or perhaps as a guarantor, and to solve these doubts the section in question was evidently framed. It was to settle a doubt fairly arising from the ambiguous location of the name, and applies to no other. In the present case there is no doubt of this nature. The signature of Mr. Mariner is placed in the usual and proper, in fact the only proper, place for a maker. The doubt arising is not a doubt whether he intended to sign as maker, indorser, or guarantor, for it is clear from the location of the name that he did not intend to sign as indorser or guarantor, but simply a doubt whether he intended to sign in an individual or in a representative capacity as maker. To say that, where it conclusively appears from the instrument that the signer intended to sign as a maker, the statute is intended to make him an indorser, would be little short of ridiculous. The statute was passed to meet a case where it is doubtful from the instrument whether a man intended to become an indorser, not to make an indorser out of a person who, without doubt, intended to sign as a maker, either individually or as representative of another. We have no doubt, therefore, that this section has no application to the present Where two officers of a corporation indorsed on the company's demand note the following words: "For value received, we hereby guarantee the prompt payment of this note," and followed the words with their signatures, they were held liable as sureties, and not as guarantors of the instrument. Iron City National Bank v. Rafferty, 207 Pa. St. 238.

case.

(f) Monson v. Drakeley, 40 Conn. 559; Solomon v. Hopkins, 61 Conn. 47; Dart v. Sherwood, 7 Wis. 523.