Sears

This is an action to recover the possession of certain described instruments consisting of a note, mortgage, and two deeds, each signed by the plaintiff, and alleged to have been deposited with the defendants.

The plaintiff was nonsuited, and the question before us is, whether the testimony of plaintiff was such as to show that the documents in controversy were delivered by him to defendants in escrow, as claimed by them.

We think the fair import of the testimony is to the effect that plaintiff had made an agreement, subject to further consideration as to title, with one Stimson and a Mrs. Buttner, for the purchase of certain property from them, and the sale by him of certain lots to them, and as part of this transaction the note, mortgage, and deeds of plaintiff, and the deed of Stimson and Mrs. Buttner for plaintiff, were signed and left with defendants, to be delivered “ when everything was all right and perfected." Upon this point the plaintiff testified: “I said to Mr. Sears: You take these papers, and when everything is all right and perfected, you give these papers to me, and *284 these others to him. • That was the agreement..... The transaction was not completed on that…