On Motion for Rehearing.
The appellee asserts in its motion for rehearing that the draft in question was presented for payment July 28, 1910. If it was presented on that date, it was before it was ever drawn. It is dated July 30, 1910. It is again asserted that it was drawn on the appellant bank. This is based on the fact that it is addressed to Texas-Oklahoma Grain Co., Vernon, Texas, signed, “J. C. Rider,” and beneath this is the following: “The Waggoner Banking Company, Customer’s Draft.” This draft was protested August 3, 1910. There is not the slightest evidence that we can find that it was ever presented to appellant bank for payment before protest ; but the testimony is without controversy that payment was not demanded until after protest, and not until the grain company had obtained -the wheat from the railroad company by virtue of a wire from Rider. The only circumstance that can in any way show appellant knew about this draft before protest and the disposition of the wheat is that the grain company and the Waggoner-Banking Company were doing business in the same town. The appellee says there is no-evidence that it accepted the conditions in the letter of July 8th. It pleaded the tele*927gram and the letter as the contract upon which- it relied for recovery and introduced both in evidence to prove its case.
It is expressly stated in the letter that, to send drafts ■ through other banks, it, appellant, could not handle them that way. Crawford, appellee’s cashier, says that if appellant was obligated to pay the draft in question, it was by virtue of these letters. Crawford swears that about the 9th or 10th of August, 1910, he sent the draft to appellant. This was after the draft had been protested, and after the railroad company had released the wheat to the grain company on the telegram of Eider. When appellant got the draft and bill of lading, the railroad had parted with the possession of the wheat on the direction of the consignor to the consignee: This delay and the failure of appel-lee to comply with the conditions of appellant’s guaranty defeated appellant’s undertaking. It is insisted that Eider had drawn other drafts which had been paid. Crawford again testified: “I do not know whether or not any of those drafts I had drawn prior to that had been sent by me direct to the Waggoner Banking Co. I do not know but what they had all been presented down there by the Herring 'National Bank, or some other banks, to the Texas-Oklaboma Grain Company, and they paid it. All I know is I got the money. All I know is I drew the drafts and sent them through the Amarillo or some other correspondent, and they would go off and the money would come back to me.” Mr. Hicks, the vice president of appellant, testified that former drafts were not sent to his bank for collection, or to present for payment to the grain company. This would not estop appellant from setting up and relying on the terms of its guaranty as evidenced by the letters. We think the ap-pellee’s own testimony shows the scale tickets were not attached to the draft in question in accordance with its letter of July 16, 1910. Appellee recalled J. C. Eider to prove: “Prior to the time of the drawing of this draft in controversy, I had never attached scale tickets to any drafts. It had not been required. It was called for at one time, but I cannot remember the time. It was after this draft was drawn.” He further testified there was no public weigher at Pampa; there were several scales in town, and it was left optional with the farmer who should do the weighing. “They issued tickets for it.” Appellant’s testimony is positive that none of the things, except the bill of lading, were attached to the draft when sent to it. As heretofore set out, there were no scale tickets attached, so we think neither of the letters were complied with as to the conditions. Under the authorities cited in the original opinion, the terms of a contract of guaranty must be strictly performed. It is a hardship on appellee bank to lose the money, and so it would be for appellant to pay it. Appel-lee has seen proper to follow its own course, regardless of the stipulations and requirements by appellant that in sending and drawing the draft it should be done in a certain way, and, having taken the risk, it should abide the consequences.
The motion for rehearing is overruled.