Barclay, J.
— The cause was submitted by both parties in the trial court on the theory that it was governed by the law applicable to gifts in view of death. The instructions given at the instance of each party plainly show this. We, therefore, review the case from the legal standpoint thus furnished, since parties to litigation are regarded as bound here by the positions .assumed by them in the trial court, as held in Tetherow v. Railroad (1888), 98 Mo. 85, and other recent precedents. Whitmore v. Sup. Lodge (1889), 100 Mo. 47; Jennings v. Railroad (1889), 99 Mo. 394.
The vital issue in the case, as shown by the accompanying statement of facts, is upon the question of •delivery of the paper by which title to the notes is •claimed to have been transferred to H. T. Ford. The ■evidence on this point is meager. Its effect is to show that, after F. F. Ford signed it, he directed defendant, his agent (who had. charge of notes and other papers of his), to put it among the papers, or his papers. This direction was obeyed. The instrument thus remained in defendant’s charge until after F. F. Ford died. No instruction was given defendant by the latter to deliver the paper to EL T. Ford.
One legal essential to delivery of gifts in view of death is, that there shall be some manifestation of an executed purpose to deliver. A mere intent to deliver is not sufficient. Something must be done to show that the intent has been carried into effect. The custody of the document is not always decisive of this issue, though it usually throws light upon its solution.
A delivery may be made to one for the benefit of another person; but, in the case before us, the document in question was delivered to the agent, not of the receiver but of the giver, to be placed among the papers •of the latter, where it remained until death put a stop to all his unfinished transactions.
Such a gift, as is sought to be here established, must fail in the absence of a delivery of the subject of thegift, or of the evidence of title thereto, at least. As to the former, it is not claimed that there was a delivery. Whether more than the delivery of the instrument, conveying title, is necessary to complete the gift need not now be discussed, since, in our view, the failure of proof of delivery of the instrument itself is obviously fatal to the claim of title in H. T. Ford. The case does not require us to further penetrate the labyrinth of law •concerning gifts in view of death. The single phase of the subject above presented is decisive against ■defendant.
As we find the defendant’s own testimony offers no -obstacle to plaintiff’s recovery on the conceded facts, it does not seem necessary to review the instructions in detail.
II. A point of practice remains. Defendant was introduced as a witness in his own behalf at the trial; but was excluded on plaintiff’s objection. Afterwards plaintiff read defendant’s deposition, given in this canse at plaintiff ’ s instance. It is claimed that the court erred in its exclusion of defendant’s oral evidence.
The fact that plaintiff had taken defendant’s deposition in the same action amounted to a waiver of any-alleged incompetency on his part; but, when defendant was called to testify orally, the attention of the trial court was not directed to any waiver. Without it, defendant was clearly incompetent under the statute on the subject. R. S. 1879, sec. 4010. If defendant relied upon a waiver, as entitling him to testify, that should have been suggested to the trial court. This was not done. After the waiver became apparent (by the reading of the deposition by xilamtiff in rebuttal), defendant did not then offer to testify in explanation, or otherwise, with reference to the matters contained in the deposition.
We perceive nothing in the rulings on this point prejudicial to the substantial rights of defendant.
The judgment is affirmed.
Sherwood, C. J., Black and Brace, JJ., concur.