The opinion
On. Motion for Rehearing.
Appellant correctly contends that all the employees of the bank did not testify that they would have remembered the Endicott instructions “because of its important character and they would have made some written memorandum of such matter.” The check in question was paid at the window of teller No. 4, who is shown to be a Mr. Olay. I-Ie testified, in part: “Q. Who handled the checks that passed through your cage? A. I handled most of them, and — the two Vicar brothers.
“Q. If you cashed that check then I ask you to state whether or not at the time you cashed it you knew that whoever got the money on it wasn’t entitled to receive it, but that it belonged to Phillips Petroleum Company? A. No. I didn’t know whose money it was; I judged it was his, by having an ‘or bearer1 check.
“Q. Did any' one purporting to represent the Phillips Petroleum Co. ever come to your window in the bank and tell you that there was any limitation on the power of W. A. Wilson to cash 'checks or receive money on them, or anything else with reference to his powers? A. Not that I remember of.”
The two .Vicar brothers, employees of the bank, and who sometimes occupied the cage of teller No. 4, testified substantially the same, but somewhat more strongly. The court, we think, was justified in concluding that such witnesses would have remembered such instructions, owing to their important nature. We are still of the opinion the facts shown in this record were sufficient to raise an issue of fact, which is all that was necessary.
Motion for rehearing overruled.