(after stating the facts as above). [1,2] The mere fact that the notes sued on were by their terms made payable at the Ft. Worth Bank did not have the effect of making that bank the collecting hgent of the Colorado bank to which they were indorsed and transferred before maturity. But when taken in connection with the facts that the defendant Childers had not been notified of the transfer and was in entire ignorance of the same; that the Colorado Bank had from the Ft. Worth Bank a special guaranty of payment and waiver of protest of the said notes; that there was a chattel mortgage from Childers in favor of the Ft. Worth Bank to secure the payment of the said notes; and that the defendant Childers was, at the demand of the Ft. Worth Bank and without, knowledge of the transfer, engaged in selling the cattle covered by the mortgage for the purpose of paying the Ft. Worth Bank the proceeds to be applied on the said notes, of all of which the Colorado Bank had notice, and the other circumstances developed in the written and oral evidence — there was a strong presumption that Childers had a, right to believe that in the matter of collecting from him (Childers) the Ft. Worth Bank was the agent of the Colorado Bank. Such presumption was not one of law, but of fact, and not warranting a directed verdict.

*635We do not find that there was reversible error in the rulings on admissibility of evidence, and on another trial the same questions may not arise.

As we find the court erred in directing a verdict the judgment of the district court is reversed, and a new trial ordered.

(dissenting in part). I concur in the conclusions stated in the first and last sentences of the foregoing opinion, but not in the other rulings expressed therein. The following statement indicates wherein my conclusions on the questions presented for decision are at variance with those stated in the foregoing opinion:

The notes being negotiable paper, the maker cannot sustain a claim that a payment by him to the original payee of part of the amount called for constituted a payment on the notes without showing that the payee, at the time such payment was made, was either the holder of the notes or the agent of the holder to receive payment for the latter. Adams v. Hackensack Improvement Commission, 44 N. J. Law, 638, 43 Am. Rep. 406; Smith v. Kidd, 68 N. Y. 130, 23 Am. Rep. 157; Bartel v. Brown, 104 Wis. 493, 80 N. W. 801. Proof that the Colorado Bank was the owner and holder of the notes, having acquired them for value before maturity, cast on the maker, the defendant Childers, the burden of proving that the Ft. Worth Bank, to which he made a payment without inquiry as to the whereabouts of the notes, which in fact then were in the possession of the owner, was authorized to receive payment for the latter. The nature of his obligations bound him to take notice of the fact that the notes were liable to turn up at maturity in the hands of a party other than the payee. Hoffmaster v. Black, 78 Ohio St 1, 84 N. E. 423, 125 Am. St. Rep. 679, 21 L. R. A. (N. S.) 52, 14 Ann. Cas. 877; 3 R. C. L., § 521, p. 1288. The holder of the notes is not bound by a payment made by the maker to one not in possession of them nor authorized to collect them.

Nothing in the correspondence between the Colorado Bank and the original payee of the notes supports the claim that the former made the latter its agent to receive payment for it. By its letters the Colorado Bank made it known to the original payee, which had made itself also a guarantor, that the forthcoming of the amount as called for by the notes was expected and insisted on. The letters were in the nature of requests or demands of payment addressed by a creditor to one of the two parties whose relation to it -was that of debtors. Nothing said by the creditor to the debtor addressed manifested a willingness of the former for the latter to be its agent to collect from the other debtor, the maker of the notes. It was immaterial to the holder whether the demanded payment was made by the maker of the notes or by the indorsing bank which had guaranteed the payment of them at maturity. The communications were such as might be- expected from one in the situation of the Colorado Bank, in the absence of any intention on its part to make its debtor, the guarantor, its collecting agent. The holder did not by any of its letters confer on the original payee actual authority to act as agent in collecting from the maker. Nor was the payee by a redelivery of the notes to it clothed with apparent authority to collect the amount they called for. Childers was under no obligation to *636make payment to a bank not having possession of the notes, though 'that bank was the original payee. He acted at his peril in making a payment without demanding production of the notes or ascertaining who held them.

The dealings between the two banks in regard to the payment of the' notes was exclusively by correspondence. That correspondence is the only proper evidence of those dealings. The objection made to evidence of the undisclosed intention or purpose of the official of the Colorado Bank who wrote its letters to the Ft. Worth Bank should have been sustained. Henry v. Lane, 128 Fed. 243, 62 C. C. A. 625.

The Colorado Bank did not estop itself to deny that the original payee was its agent to collect from Childers. It is not made to appear that Childers knew what passed between the two banks. He could not have relied to his prejudice on conduct of which he was in ignorance. Besides, the Colorado Bank did not do, or omit to do, anything calculated to lead the maker of the notes to believe that he could discharge his liability by paying to one who was not the holder of the notes and who was without authority from the holder to collect them. In the circumstances disclosed the Colorado Bank’s continued retention of the notes was enough to protect it from being prejudiced by a payment made by the maker to one not in possession of the notes and not clothed by the holder of them with either real or apparent authority to accept payment for the latter.