
    J. Grote against A. Grote.
    NEW YORK,
    Oct. 1813.
    Where A. on the 7th of-De-' comber, 1805, farm,‘theses8 session of which was to be delivered on the 1st of May, 1808, encumbran-8'1 notes'SfoM;he which ten agreement encumbrances, &c. and B. gave to A. his several were left $n the hands of C. until A. should perform his writ-of the 7th of December, 1805, as to the delivery of the farm, &c.; and B. took possession of the farm on the 1st of May, 1808, the title to which had not, been questioned, and all the notes were paid by B., except one, which C delivered to A. In a suit on that note by A. against B. it was held,, that a jury might infer, from circumstances, a redelivery of the note by the defendant to the plaintiff, and that the facts in the case were sufficient evidence of a performance of the condition on which the note was left in the hands of C. or that the defendant had waived the condition, ordis» » pensed with its performance.
    THIS was an action of assumpsit on a promissory note. The _ . . . cause was tried at the Albany circuit, m April, 1813, before Mr.Justice Yates.
    
    The note was proved by the subscribing witness, who testified that it was given for part of the consideration for a certain farm sold by the plaintiff to the defendant; that this note with several °thers given by the defendant for the consideration, were left iii the hands of the witness to be kept until the plaintiff should perform the terms of a certain agreement in writing; which was produced by the defendant, dated 7th of December, 1805, and which stated that whereas J. Grote (the plaintiff) had, by way of deed, bearing date with the agreement, conveyed to A. Grote and S. Grote all that certain piece of land, &c. occupied by the plaintiff, being all the right and title to the lands and tenements he inherited from his father, and described in the said deed; it was agreed that the plaintiff should occupy the premises until the 1st of May, 1808. In consideration whereof the plaintiff agreed to pay all the rent then due to the lessor for the premises, or that should grow or become due on the same, until he should give up the possession, and pay all taxes on the premises, &c.; that the same should be free from all encumbrances whatsoever when they, the said A. and Sí. Oróte, should receive possession, and at the expiration of the term, to wit, the 1st of May, 1808, surrender up the house and farm to the said A. and 8. Grote or their legal representatives, in good order, &c. and free from all encumbrances.
    The defendant offered to prove that the deed was not executed at the time of the agreement, but this being objected to was overruled by the judge, as contradicting the agreement.
    It was then proved that the defendant and 8. Grote went into possession of the farm mentioned, about the 1st of May, 1808, and still remained in possession, and that the title had never been questioned. The consideration given to the plaintiff was 1,880 dollars, payable in instalments of 125 dollars each, and separate promissory notes were given for each instalment; some of the notes became due before the 1st of May, 1808, and were paid, and the note in question was the last, being the only one remaining unpaid, and was delivered by the witness to the plaintiff.
    The defendant then offered to prove that there was rent in arrear and due to the landlord, on the farm held by the plaintiff’s father, and of which the premises mentioned in the agreement were a part, and that the plaintiff was bound to pay that rent; but the evidence was overruled by the judge, who directed the jury to find a verdict for the plaintiff for the amount of the note with interest, and the jury found a verdict accordingly.
    A motion was made to set aside the verdict, and for a new trial; 1. Because the note was delivered as an escrow, and the condition never performed; and the condition not having been performed, the note was not valid against the defendant, without evidence of a delivery by him to the plaintiff at another time; 2. Because the judge rejected proper evidence; and, 3. Because he misdirected the jury.
    I. Hamilton, for the defendant.
    
      Ostrander, contra.
   Per Curiam.

The facts well warranted the jury to have presumed the note to have been delivered over to the plaintiff by the assent, and as the act of the defendant. Circumstances may be equivalent to an actual redelivery of a deed. (Cowp. 201.) The note in question, together with other notes given as part of the same consideration, were left with the witness as a trustee for the plaintiff, and to be delivered to the plaintiff, on his performance of the agreement, it was proved .that the defendant had paid the other notes as they successively fell due, and had entered into the possession of the farm for the purchase-money of which the notes were given, and that the title was undisputed; and the present note (being the only one remaining) had been delivered to the plaintiff by .the witness. These facts were evidence that the contingency on which the note was left with the witness had either been fulfilled, or finally dispensed with, by the assent of the parties.

The motion on the part of the defendant ought, therefore, to be denied.

Motion deniedv  