*1 yisited upon owner from tice tlie arises Holland 346; possession the land. and hostile use of Nance, 114 W. v 102 Tes. S. . App.) W. 278 S. Burton Holland App.) Barkley 252, 254; Gibbs Com. marking the lines W. S. 467. possession. appellees (cid:127)was not EVen land, fencing fence on built a possession in the ab not have constituted enjoyment sence v land. Cochran of use of the App. 372, Moerer, S. . W. 1138. possession” as is shown “tramroad is, being that far short case open, visible, possession and notorious presumption true raises being owner asserted adverse claim is his, patent de- that he could not be ig- ceived, that, remains “such of, norance is his own fault.” Houston Stepney (Tex. Oil W. Co. v. 187 S. There are theories in case other majority opinion, upon discussed in the appellees judgment have asked lower court be affirmed. But members agree this court are without merit. majority

As I understand judgment of lower is affirmed only upon the issues of limitation five and years. ten As dis- concur their' cannot issues, that, of these follows judgment record, construe the low- reversed, er court should appellants. here rendered for

PHILLIPS CO. v. PETROLEUM FIRST

NAT. BANK OF PAMPA.

Court of Civil of Texas. Amarillo. Denied Nov. Gibson, Sutton, in error. Cook, Smith, Wáde, Teed in error.

MARTIN, Justice. will herein as trial court. Plaintiff, on all the dates mentioned here gasoline oil, in, was a manufacturer agencies. which it local sold One of charge located at these was of one A. Wilson. W. plaintiff against suit Wilson was authorized to collect proceeds from “sale in and had cheeks from Brown W. A. for paid prior authorized Phillips ity National Bank plaintiff; pository ; plaintiff depository * * limited about December cashed said check nial, check Wilson, lant for plaintiff alleged plaintiff cash structed to a back for same. Plaintiff with full interest, etc. sion! ty check judgment for defendant. actual the said without of ployee court we their certain A. Wilson.’ Hundred Co., following endorsement: “which person The answer The trial was From “3. That “ “ “On $1300.10”; unknown to Green to collect property payment by ‘Pay ‘For Nov. “ “ of said check checks and to said sale thereof, to said check ‘The ‘Pampa, was was the * or was or said check whose Pet.. Co. any and or that the said W. that Wilson a no quote the & Brown sent deposit only. of indorsing checks notice constructive, First of reverse special plea to cash for a persons payable on December retain findings of authority deposit date, check, products”; for customer Wilson; its check plaintiff presenting that said check had no acc. 10/100 Texas, property of plaintiff, Phillips indorsement $1300.10 plaintiff, said bank was before the National that said check order of said value before 22, 1930, said the face value or Pampa, Texas, for the sum and that Wilson of said check by following: unknown reading checks them to the account by bearer, them in Dollars. Green & Wilson, said bank any that his in the had appellant, of to in substance that said and “ ‘By G.B. Brown.’ Petroleum One Thousand Three and it had no of given by ‘Phillips * * payable to n same In “that one Green Bank or A. Wilson was cash plaintiff, delivered defect was accepted wrongful appeared cash drawn knew when it the city1 had no author was Brown authority and the maturity instructed any a authority plaintiff, appeared was to some who entered but and Pet. Co. W. in the title Bank general alternative designated & Brown said payment. cheek same with of and on Petroleum presented Company, negotiate collected acquired of nn by to said was paid Pampa in conver prayed an em- notice, appel Green First such —, had, par- was firm de de- propositions, in by or ^[*] at to check check ing Green Brown. record. First cluding mine the tiff’s first for the excluded ward in said check the same check leum v. Milliken V. der article for and we know statements brief. pose Phillips the support con pleadings. may the more that plaintiff great length payer ment to ment be plication Daniels on page App. 133, 88 S. W. er, authorize purchaser ordinary prudence strument before National * * purchase “5. That “4. “5a. An “ Skidmore satisfaction the window Phillips entitled to receive full the same face ‘Notice of facts sufficient said Wilson is review under this alleged insufficiency would seem to be Company, filed was in his was the National said Bank interesting have notice That at the time Mutual fraud find Any person having a written contract the court’s collation Petroleum Obviously to said any nothing the controversial issue made check admissibility of evidence of which presented proposition. Nothing is thief, sought the conclusion alleged has at 2237, Vernon’s Ann. Civ. by plaintiff upon said Bank bearer. Smoot, Negotiable Petroleum concerning possession “may Higley all of person the time of bill testimony is not relied property circumstances, knowledge, Life & of purchaser of Teller No. if it Bank of only finder or Phillips paid a few except its account and thereof error of the court maturity and for Chapman judgment. Company.” upon inquiry’ was the will be valid by authorities. upon, and facts. mention exception Loan Ass’n Tex. App.) 50 and served Instruments exhaustive some one Dennis, knowledge payment, proposition, days same Petroleum contrary, the unauthenticated Greneaux such maintained.” presentation of bad faith fraudulent holder.” of the evidence of a relate, testimony pro must be not able 471; note 41 un between It will be noted property 4 in said due and thereafter briefly party, by detailing Phillips No useful negotiable found S.W.(2d) i party paying put brought any, relating presumed unknown payment of iff although of America from said has no defendant-, unless the and a remaining such as to presented brief *2 Company v. Wheel effect, to deter (6th St. present- because of man of instru owing in ex Petro- Bank. plain value. 1925, First said 384; said pur- pay for Ed.) and has ap- to to to regard objec- 900, 902, cit- should and authorities there handling, tions to the above method of ed. not hesitate to so advise us.” “The now one of replied, —to which letter defendant bank negligence, diligence ex- faith and not of cept *3 mate- as of caution is so far want the bearing faith arrangements rial as and “We wish to state that the suspicion satisfactory facts which your as set forth in are letter amount no- fall tice.” S O. faith comply short do not try of bad to us and we will with them. pages 502, authorities J. signature signed.’ “We enclose card to be there collated. by parties against authorized to draw drafts Applying legal principles, the we and return here these account to us our files.” have concluded at least signature It is admitted that the card sent issue, an is not in contain the name of W. A. Wil compel would character as conclusive correspondence son. It is inferable from this that it related finding (1) in the bank acted that either solely manner of the deposits. semi ques faith; (2) in had notice that the check monthly withdrawals of We do not property it tion was was when the imperatively think that the conclusion is nec paid; (3) that bank violated its essary that it constituted such notice obligations plaintiff. The contractual with bank as would make liable for the may perhaps last in the first. be included though a check indorsed Regarding the bank by A.W. since the indorsement was authority, Endieott tes witness Wilson’s necessary paper. to transfer title to “I do not re tified for Hopkins Upshur, See 70 Am. my had member in conversation with whom Pope v. Brookshire said bank but I went talked pages 6 Tex. Jur. and 279. agent employee with bank and some original peti first-amended Plaintiff’s A. had one W. told him that we Wilson checked in appears tion 25, to have been filed on November agent our our bulk station there as showing 1932. There is-no in the record were to that all checks which in original when its suit was filed or when this Pe received controversy It between the first arose. ,be deposited troleum in were appears March, in that some of the Phillips Petro said bank to the credit of the plaintiff got officers of W. Á. Wilson their Company and had leum that W. Wilson A. office and that he admitted that he had personally the checks or cashed this check and used the This them his own account.” Wit confession of embezzlement was admitted Gilliam, Bank, ness Assistant Cashier of the objection over the defendant that it purported when tion, about this conversa asked purely hearsay binding defend-, upon and not court “No, sir, don’t hear testified: remember I think expressed ant. a doubt as to ing anything it at all. if about permitted admissibility, its since such instructions I would argued before trial was the court. It is em of it.” some Other made ployees this evidence established .that of the bank have re personally check at defendant Endieott ceived instructions above de bank, which tended to establish tailed testified to the same flatly finding contradicted the of the court thing. testimony While their is of some per it was cashed that son. some unknown negative character, they what each expressly doWe not here decide (cid:127)say not remember testimony whether was admissible. say, believe, admissibility, While doubtful its they would have remembered ’it because of we have no doubt that the court under the character and particular circumstances of this case could memorandum of such made a written a mat totally disregard it, particularly since ter. judge credibility was and the of witnesses Prior selection weight given testimony. to their depository, bank wrote de Discussing testimony, Supreme August letter, 18,1928, fendant a dated Iowa, early case, Court after dis- following paragraphs: contained secondary cussing purely character of of instructing agent your city “We our testimony necessity this kind of And the deposits, collections, our make to in to be left laying predicate, following a clear makes the your bank to draft drawn addition, should, “In observation: Amarillo National the Texas. particular under circumstances anticipate leaving funds in case, probable was no be satisfied tliere drawing the drafts about falsify declared; motive to the as where ** (cid:127)every two weeks. motam, is litem made ánte declaration a¿ very glad preclude period shall be so remote all sus- “We to hear from at a picion oc- for the manufactured Ingalls, et al. County al. v. McKINLEY HALTOM et Mahaska v. casion.” The Ex’r., Iowa, page also, See, J., 22 C. Texarkana. Court of of Texas. Civil testimony admissible is claimed July 11, 1933. theory is a declaration against pecuniary interest, and where Denied may be introduced. witness not available where, dangerous testimony at best and case, statement of an as in this having embezzler introduced actually subsequent to, not against at to, near a time *4 the claim character, we considering unusual its rather stated, doubtful, all as before not at right are the in its disbelieve entirety. sufficiently Believing sus- court, it is in tains the things affirmed. Rehearing.

On. Motion for Appellant correctly contends that all testify employees did not Endicott remembered the would have important charac- structions “because of ter some written would have made of such matter.” The check teller window of Olay. a Mr. I-Ie No. who shown to be “Q.

testified, Who handled the passed through your cage? A. I checks that handled and —the two most Vicar brothers. “Q. you If that check then ask you you state whether or at the time you got cashed it knew whoever

money on it wasn’t entitled to receive belonged that pany? Petroleum Com money A. No. I didn’t know whose was; his, by having judged it was ‘or bearer1 check. “Q. any' purporting represent Did one Phillips Petroleum Co. ever come to and tell in the bank window power limitation 'checks receive Wilson to cash them, anything to his else with reference

powers? I remember of.” A. Not that employees brothers, .Vicar occupied cage sometimes and who 4, testified teller strongly. more somewhat justified concluding have remembered witnesses would owing to their opinion still of nature. We were sufficient to raise this record shown in fact, which all that was neces- an issue sary. rehearing overruled.

Motion