result in partial relief to the plaintiffs, since possession of the safe, or access thereto, could not be therein awarded, and the contents thereof might not be susceptible of pecuniary recompense."

A right by survivorship to contents of a safety deposit box rented by husband and wife was denied." The contract of rental read as follows: "We agree to hire and hold safe No. as joint tenants, the survivor or survivors to have access thereto in case of either; but either to have power to appoint a deputy." Of this the court said: "It has not been possible to find that this was anything more than an agreement to hold the box together and to permit access thereto by each other."

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§ 99. Access under Power of Attorney. The risks of granting a power of attorney to secure access to a safe or safe deposit box involve the honesty, power and identity of the agent appointed. If he is dishonest, any loss thereby caused will fall upon the depositor who appoints him. If he lacks the requisite authority or is not the person described in the power of attorney, the loss may fall upon the depositary. But in spite of these grave risks, the instances are many that render this means of making or removing deposits a necessity. It is thought that the depositary cannot deny it in a proper case, though regulation of access by agent is a proper and commendable precaution in the interest of both parties.

A case of liability was made against the depositary in an Illinois case, where two strangers were admitted

52. Matter of Brown (1914), 86 Misc. (N. Y.) 187, 149 N. Y. Supp. 138. Where husband and wife rented a safe deposit box together, property placed therein by each did not belong to the other. In re Squibb's Estate, 160 N. Y. Supp. 826.

53. For an instance of such loss see Carlisle v. Norris (1913), 157 N. Y. App. Div. 313, 142 N. Y. Supp. 393.

to the box who had a key and an alleged power of attorney, but the depositary did not retain the power of attorney, or take the name of the notary before whom it was executed, or require the strangers to identify themselves, or ascertain their address or business. This the Supreme Court of Illinois said tended to show "not only want of ordinary care, but actual negligence in the protection of the property intrusted."'"

54. Mayer v. Brensinger (1899), 180 Ill. 110, 54 N. E. 159, 72 Am. St. Rep. 196.

CHAPTER XV

Escrows

§ 100. Preliminary. The organization of a trust company, with its long life, its ability to surrender its contracts to successors upon expiration of its life, its being supervised under strict regulation, and its many other safeguards in respect to the care and custody of property, and especially the making of such care and custody features of business under specific charter provisions seem to provide, not only for the business world, but also for private interests, an agency for the carrying out of escrow agreements of a peculiarly fit nature, and also of agreements in the nature of escrow.

There is so much to be implied in a contract with a corporation, which holds itself out for the doing of a particular character of business, that the same particularity of statement in contracts made with it is not necessary as in an agreement whereby an individual is to act in a case under this power, and there need be no special caution against the rights of third persons against a party holding an instrument in escrow, or in performing an agreement of such nature. Confusion might arise, especially when an individual should go into bankruptcy, or make an assignment in insolvency proceedings or

should die. The records kept by a trust company necessarily must be kept clearer than in the case of an occasional transaction with an individual, and the small fee ordinarily paid in such matters nevertheless gives to all parties in interest the right to inspection of papers and reports as occasion arises. Advantages of the above. and other kinds I hope specifically to point out in this chapter.

ment.

§ 101. The Nature of a Strict Escrow AgreeAn escrow arises, when some written instrument if delivered would take effect according to its tenor, yet is in suspension, irrecoverable for a stated period, until the party to be benefited by its complete delivery shall perform or cause to be performed some precedent condition,' or that some third party shall perform some act, or where merely some event shall occur," but decision is variant whether a mere event, which is to happen does anything more than hold delivery in suspense, and, therefore, does not make of an instrument a true escrow, that is an instrument to become effective on compliance with a certain condition.*

A pure escrow agreement, therefore, provides for the delivery of an instrument when the conditions of its deposit in escrow have been fulfilled, or an event stated to happen prior to delivery shall have happened. This kind of an agreement involves merely proper care and

1. Hoyt v. M. Lagan (1893), 87 Iowa 746, 55 N. W. 18; Taylor v. Cate (1896), 29 Ore. 515, 45 Pac. 800; Landon v. Brown (1894), 160 Pa. 538, 28 Atl. 921.

2. Hughes v. Thistlewood (1888), 40 Kan. 232, 19 Pac. 629; Wright v. Lang, 66 Ala. 389.

3. Stone v. Duvall (1875), 77 Ill. 475; Haeg v. Haeg (1893), 53 Minn. 33, 55 N. W. 1114.

4. Foster v. Mansfield (1842), 3 Met. (Mass.) 412, 37 Am. Dec. 154; Stephens v. Rinehart (1872), 72 Pa. St. 434.

custody and a seeing to the performance of conditions. or the happening of an event mentioned before the instrument deposited in escrow shall be surrendered to a party to be benefited thereby. This kind of an escrow does not so greatly call into employment the great advantages of a trust company as do those agreements rather in the nature of, though strictly not escrow agree

ments.

5

In pure escrow agreements the duties and powers of depositaries of escrows are exceedingly narrow. Custody and strict compliance with specific directions as to disposition of the escrow are the measure of liability and there is little room for the exercise of discretion, and if the depositary acts in good faith the courts will afford him the utmost protection in its power. A deposit of this kind does not concern property so much as it does mere writing concerning rights in property or in contract. Therefore the holder of an escrow is never called a trustee. This is well illustrated in a case decided by Fifth Circuit Court of Appeals," where there was considered the effect of a special legislative charter to a railroad company. This provided for subscriptions by counties, the issuance of stock to the counties and of bonds by them and the deposit of the latter with a designated trust company to be held in escrow and delivered to the railroad company as provided by each county and the railroad company.

The trust company brought suit to compel defendant company to deposit with it bonds called for by a certain agreement. The court alluded to an averment that "appellant in its bill styles itself a 'trustee'," but the

5. Bean v. American Loan & Trust Co. (1890), 122 N. Y. 622. 6. Farmers' Loan & Trust Co. v. Board of Supervisors (1899), 93 Fed. 579, 35 C. C. A. 460.