the writing mentioned; that they promptly procured for him the loan solicited, examined his farm, accepted the security offered as adequate for the money desired, and performed all the terms specified, except such as were excused by the defendant's refusal to keep his engagement, and they have been at all times ready, able and willing to consummate the loan, but the defendant failed to perform his part, whereby they are entitled to $220 for which sum judgment is demanded.

The answer admits the signing of the writing, but denies all other averments of the complaint. For a further defense it is alleged, in effect, that the defendant subscribed his name to the instrument pursuant to negotiations to obtain a loan upon his farm upon which H. Towner held a mortgage; that unless such encumbrance was canceled a first lien could not be given; that it was agreed the defendant should write Towner and ascertain if a release could be secured upon payment of a part of the mortgage debt, and the written instrument was to become effective only upon his consent to that proposition, without which assent it was agreed the writing was to be void; that defendant immediately wrote such mortgagee, who, replying, refused to release his lien, of which fact the plaintiffs were promptly notified. A motion to make the answer more definite by averring whether or not the alleged agreement whereby the instrument remained inoperative was in writing was denied. A demurrer to the new matter in the answer on the ground that such averments did not constitute a defense was overruled, whereupon a reply was filed controverting the allegations of such new matter. Based on these issues, the cause was tried, resulting in a verdict and judgment for the defendant, and the plaintiffs appeal.

AFFIRMED. REHEARING DENIED.

For appellant there was a brief and an oral argument by Mr. Charles A. Small.

There was no brief or appearance for the respondent in this court.

Opinion by MR. CHIEF JUSTICE MOORE.

It is contended that errors were committed in denying the motion and in overruling the demurrer. It is also insisted that the court erred in receiving, over objection and exception, certain testimony, and in giving and refusing instructions, to which rulings exceptions were taken. These alleged assignments may all be considered under some of the instructions referred to. Thus the plaintiffs' counsel requested the court to charge as follows:

"Gentlemen of the jury, I instruct you that, if you find that defendant delivered to plaintiffs the instrument signed by the defendant, a copy of which is annexed to plaintiffs' complaint, and refused to comply with the terms thereof, and if plaintiffs performed their part of the agreement, you will find for the plaintiffs."

This language was given, with the following addition:

"Unless you find that plaintiffs and defendant entered into the oral agreement hereafter referred to." Without request the jury were further charged as follows:

"I instruct you that, if you believe there was a parol agreement between the plaintiffs and the defendant that the written instrument introduced in evidence, signed by the defendant, was not to become effective as a contract between plaintiffs and defendant unless one H. Towner should give his consent to defendant giving first mortgage security to plaintiffs as security

for a loan to be procured from plaintiffs, the said H. Towner agreeing to accept partial payment of the moneys due him, and take a second mortgage for the balance, and that Towner refused such consent, then you shall find for the defendant."

No brief has been filed by the defendant, nor did he appear in any manner in this court. It appears from an examination of a transcript of the testimony that the cause was tried upon the issue as to whether or not the writing was delivered. This theory is evidenced by the requested instruction hereinbefore quoted. The plaintiffs' counsel, referring to the written instrument, inquired of his client, William Miller:

"Did Mr. Weaver hand it over to you?"

The witness answered:

"I don't know that he handed it to me; it was signed on the desk in my presence; was picked up off the desk by me and folded and put away.

No testimony was offered tending to show that the writing, after it was signed, was left upon the desk or elsewhere by the defendant with the intention that it should be taken by the plaintiffs, so as to have irrevocably passed beyond his control: Allen v. Ayer, 26 Or. 589 (39 Pac. 1); Hoffmire v. Martin, 29 Or. 240 (45 Pac. 754); Payne v. Hallgarth, 33 Or. 430 (54 Pac. 162). The plaintiffs' possession of the instrument would undoubtedly have raised a disputable presumption, in the absence of any other evidence, that the writing had been duly delivered: Flint v. Phipps, 16 Or. 437 (19 Pac. 543); Swank v. Swank, 37 Or. 439 (61 Pac. 846); Pierson v. Fisher, 48 Or. 223 (85 Pac. 621); State v. Leonard, 73 Or. 451 (144 Pac. 113, 681).

Though the grantee's possession of a deed, duly executed, affords prima facie evidence of its delivery,

thereby imposing upon the grantor the burden of disproving an intentional surrender of the sealed instrument, parol evidence is admissible to rebut such presumption by showing that the writing was never delivered: Devlin, Deeds, §§ 294, 295. Instead of relying upon the deduction which the law expressly directs to be made from the mere possession of the writing, the plaintiffs' counsel, as it will be remembered, undertook to supplement the presumption by interrogating his client in respect to the manner in which he secured custody of the instrument, without attempting to prove its legal delivery or to show any facts from which a valid possession of the writing could reasonably have been inferred. By this means the prima facie evidence of a delivery was overthrown, and, as there was no other testimony offered upon this subject, the material issue that the defendant "made, executed and delivered to said plaintiffs an instrument in writing" as alleged in the complaint and denied by the answer was not established in the plaintiffs' favor. If William Miller had testified that the defendant, after signing the writing, left it on the desk for the witness, delivery could have been inferred. In order to supplement the presumption adverted to, it must be inferred, from the testimony so quoted, that the writing was left on the desk for the witness, and from such deduction an intention to deliver must also be inferred. This would be founding an inference on an inference, which mode of proof is prohibited: Sections 794, 796, L. O. L.; State v. Hembree, 54 Or. 463 (103 Pac. 1008); State v. Lem Woon, 57 Or. 482 (107 Pac. 974, 112 Pac. 427); Lintner v. Wiles, 70 Or. 362 (141 Pac. 871). It will thus be seen that such presumption was destroyed by the additional testimony. The verdict and judgment may securely rest upon the plaintiffs' failure to prove

a material averment, which disputed fact it was incumbent upon them to establish.

The requested instruction was predicated upon the hypothesis of a delivery of the writing, and the language so employed should have been given without the added clause mentioned. If it can be assumed from the part of the quoted charge given by the court of its own motion that the instrument was in fact delivered, it would necessarily follow that the written obligation became absolute. Such being the case, the extrinsic parol agreement alleged in the answer, providing for a qualification of the writing, was a condition subsequent which did not constitute a defense to the action, and errors were committed as alleged: Section 713, L. O. L.; Wigmore, Ev., § 2435, note 3. But, however this may be, as the certificate of the trial judge shows that there were attached and made a part of the bill of exceptions copies of the entire testimony, the instructions to the jury, exhibits and all other material matters, a careful consideration thereof leads to the conclusion that substantial justice has been administered, notwithstanding any supposed errors: Hoag v. Washington-Oregon Corp., 75 Or. 588 (147 Pac. 756).

It follows that the judgment should be affirmed; and it is so ordered. AFFIRMED. REHEARING DENIED.

MR. JUSTICE BEAN Concurs.

MR. JUSTICE BENSON and MR. JUSTICE MCBRIDE concur in the result.

MR. JUSTICE BURNETT delivered the following dissenting opinion.

1. In substance, the plaintiffs allege that about November 1, 1912, the defendant executed and delivered