By the Court,

We think the court below was right in withdrawing the Tucker note from the consideration of the jury. Such a direction is always proper when, if submitted to the jury, a contrary verdict would be set aside as against the weight of evidence. The title of the note did not pass to Brit' ton until delivery, or at least until the amount to be indorsed was *25ascertained and the indorsement made, which appear not to have been done until after the commencement of this action. It was one of the conditions of the agreement between Britton and Tucker that a certain amount already paid was to be ascertained and indorsed; but no time was fixed within which Tucker was to do so. This was necessary, to know how much Britton was to pay, for which it seems he was to give his own note to Tucker. Until these things were done, it seems clear to us that the title of the note still in the hands of Tucker remained unchanged, and that there was no error in the instruction.

Judgment affirmed.