
    SHEFFER v. FLEISCHER.
    1. Trial — Directing Verdict — Evidence.
    A motion to direct a verdict in favor of the plaintiff must be determined on the basis of the testimony most favorable to the defendant.
    2. Bills and Notes — Execution—Delivery.
    Notes signed and left where the payee might take them, are not valid in the hands of a holder in due course unless there was a delivery. Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497).
    
    Error to Charlevoix; Mayne, J.
    Submitted June 23, 1909.
    (Docket No. 99.)
    Decided September 21, 1909.
    Assumpsit by Allen Roswell Sheffer against A. B. Fleischer upon certain promissory notes. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.
    
      J. M. Harris, for appellant.
    
      Lisle Shanahan (Halstead & Halstead, of counsel), for appellee.
    
      
       The notes in question were dated November 4, 1901, and therefore are not governed by the Negotiable Instruments Law (Act No. 265, Pub. Acts 1905). — Reporter.
    
   Hooker, J.

The undisputed evidence shows that six notes, bearing the genuine signatures of the defendant as maker, in suit in this case, came to the hands of the plaintiff as a bona fide purchaser, for value. The defense made is that the notes made were not delivered to the payee or any other persqn. The jury found a verdict for the defendant, and the plaintiff has appealed.

The transaction is in dispute, and, as plaintiff has appealed upon the ground that the circuit judge should have directed a verdict in his favor, we must dispose of the question upon that version of the testimony most favorable to the defendant. It is, in substance, that one Hirschberg came into his store and attempted to sell him some optical. goods, representing the LeMaire Optical Company, of which he testified that he was treasurer and authorized to negotiate and indorse promissory notes owned by it. They practically agreed orally upon an arrangement, which Hirschberg had or was to put in the form of a contract, but which was not signed by defendant. The defendant was to order certain goods; but defendant says that he had not signed the order. He had signed the notes, however, and they lay on the showcase or counter, and Hirschberg was to make a copy of the order for the defendant. The defendant was called away to wait on a customer, whereupon, in his absence, Hirschberg took possession of all of the papers and left the store. Thereupon defendant immediately wrote the payee repudiating the transaction, and later refused to receive the goods.

The only question in the case is whether a verdict should have been directed for the plaintiff. The learned circuit judge left but one question to the jury, viz., whether there had been a delivery of the notes, and obviously the jurors found that there was not. Plaintiff’s contention here is that, by leaving his signed notes on the counter, he placed it in the power of Hirschberg to purloin and negotiate them. We think the case within the rule laid down in Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Cressinger v. Dessenburg, 42 Mich. 583 (4 N. W. 269); Laprad v. Sherwood, 79 Mich. 525 (44 N. W. 943); Portsmouth Sav. Bank v. Village of Ashley, 91 Mich. 681 (52 N. W. 74, 30 Am. St. Rep. 511).

The judgment is affirmed.

Ostrander, Moore, McAlvat, and Brooke, JJ., concurred.  