ON MOTION FOR REHEARING. Appellants' motion for a rehearing does not set forth certain matters which our Rule 21 provides "must be distinctly and particularly set forth in the motion." For this reason the motion might well be overruled, but in their supporting suggestions counsel challenge the accuracy of our conclusion from the evidence adduced that the Holland Banking Company was not apprised of the exercise of duress upon appellants in their execution of the first note, and they also say that we have not stated the facts pertinent thereto in the light most favorable to the contention of the losing party, as should be done when a peremptory instruction has been given. Although these criticisms apparently arise out of counsel's own commingling in these suggestions, as well as in their brief and argument presented on this point in their submission of the case, of facts brought to the knowledge of the banking company, and mere expressions of opinion or facts not shown to have been communicated to the banking company, we have given them careful consideration.
Appellants admit that the evidence most favorable to their contention that the Holland Banking Company had notice of the alleged duress appears in the testimony of James N. Snadon and Lee Rountree who, with E.L. Sanford, acting for the banking company, conducted negotiations for this loan. We herewith present their testimony *Page 296 in full as shown by the record, to the extent that it bears on this character of information disclosed to Mr. Sanford.
James N. Snadon said on direct examination:
"Mr. Rountree talked first, Mr. Rountree says, `Yes, we want to borrow — we want some money, but we don't want to borrow any, but we have got to borrow it,' and I says, `No, we don't want to borrow any money if we could possibly get around it, but we are where we have to borrow it.'
"Q. Did you tell him why you had to borrow it? A. We went ahead and told him the bank was short, and we had to have money, we was facing the penitentiary if we didn't get it.
"Q. You told Mr. Sanford that? A. Yes, sir. . . .
"BY THE COURT:
"Q. Tell what you said to Mr. Sanford, tell everything you said to him when you told him you didn't want to borrow the money but had to, go ahead and tell the whole conversation? A. Mr. Rountree done most of the talking.
"Q. What did he say? A. He went ahead and told him the bank was short and we was facing the penitentiary, we didn't want to borrow this money, then we went ahead and told him we was borrowing the money and the surplus earnings of the bank would pay this note, we didn't expect to pay this note ourselves, it was a bank obligation.
"Q. Did you tell him what you was borrowing the money for?
A. Yes, sir.
"Q. What did you tell him you were borrowing the money for? A. To keep the bank from breaking.
"Q. No particular purpose other than that that you were borrowing the $35,000? A. No. sir. . . .
"Q. Go ahead and tell everything you stated to Mr. Sanford, everything you said to Mr. Sanford? A. I don't remember talking very much to Mr. Sanford.
"Q. Did Mr. Rountree state in your presence to Mr. Sanford, state everything that was said there to Mr. Sanford? A. Well, the most of our conversation I think was just talking about the business in regard to the bank, and he said we could get the money if we could get things shaped up, he said it would pay things off, he said the bank would pay things off, for us not to get scared.
"BY MR. NEALE:
"Q. Tell what you said to him, if anything, about what had happened in the Dade County Bank the night you signed the note? A. They had already told him there was a shortage down there.
"Q. You haven't told the jury what you said to Mr. Sanford about that? *Page 297
"BY THE COURT:
"Q. Tell everything that was said to Mr. Sanford, go ahead and tell everything that was said? A. I don't know that I can remember all that was said word for word they said we was facing the penitentiary down there and we have to have the money, we expected the bank to pay this, we didn't consider it our personal obligation. . . .
"BY THE COURT:
"Q. Tell everything that took place, no matter whether it took place between you and other parties, or Mr. Rountree and other parties, tell everything that was said between you and Mr. Sanford or Mr. Rountree and Mr. Sanford? A. I believe all I can remember about I have told it.
"Q. Did you tell Mr. Sanford about the conversation you had at the bank with the examiners? A. Yes, sir.
"Q. Now, tell me what you told him about the conversation between you and Mr. Rountree on the one side, and Mr. Moody and Mr. Clippard on the other hand, if you told Mr. Sanford anything about it? A. I told Mr. Sanford in talking that the bank examiners was down there and found the bank short, and they was trying to help us get some money, and if we didn't get the money they said the penitentiary was facing us, and we talked on about wanting to get the money which would help us out."
On cross-examination he said:
"When we came up to see Mr. Sanford, we told him the shape we were in and that we were facing the penitentiary if we didn't get the money. Both Mr. Rountree and myself told him that. We talked in a business like way about the loan. We told Mr. Sanford that we had made arrangements that the bank would pay this note, and he was to take interest out of anything the bank had there."
Lee Rountree said on direct examination:
"I asked him if Mr. Moody had explained everything to him, and he said that Moody had gone into details and we needed $35,000. He asked me if we wanted to borrow $35,000, and I told him we had to. He asked several questions about the condition of the bank, the shortages and the cause of them, and I told him. I told him everything that had happened in the bank at Greenfield the night before, the best I could. I told him that the note we had signed there the night before had our signature on it personally, but did not have the bank's signature on it, and Mr. Moody had agreed with us that the surplus of the bank and the earnings would take care of the interest, and if we had enough, it would pay this $35,000."
On cross-examination he said:
"Mr. Sanford asked us a good many questions. *Page 298
"Q. Tell the jury what he said? A. About the condition of the bank, about the shortages we would have to make up, and if we wanted to borrow $35,000, and we told him we had to borrow $35,000, we had to get this money, those fellows would send us to the penitentiary if we didn't get this money and make up that shortage, we had to get the money, we talked the situation over and he said we could get the money."
The above testimony certainly does not show notice to Mr. Sanford that the two bank examiners had coerced the directors into signing the note then presented to him, or that they had caused them to sign it through threats of criminal prosecution or promises of immunity therefrom. Rountree did say that he told Sanford the best he could everything that happened in the bank at Greenfield the night before, but this statement is mere conclusion and must be taken as limited to the things that he and Snadon, when specifically examined, said they told Sanford. There is not a reference, either express or implied, to any promise of immunity from prosecution. Snadon's statement "that the bank examiners was down there and found the bank short, and they was trying to help us get some money, and if we didn't get the money they said the penitentiary was facing us," does not necessarily indicate a threat of prosecution, and other statements by Snadon and Rountree that they did not want to borrow the money but had to, that they were facing the penitentiary, and that the examiners would send them to the penitentiary if they didn't get the money and make up the shortage, were evidently mere expressions of opinion on their part, and did not constitute notice to Sanford that they had been inspired by any threats made by the bank examiners or by anything else that would amount to duress or coercion in the execution of this note.
If the Holland Banking Company made this loan without notice of duress in the execution of this first note, and from the foregoing it seems clear that it did, then, as counsel themselves say in their suggestions accompanying appellants' motion for a rehearing, "the court's opinion in this case is justified."
Appellants' motion for a rehearing is, therefore, overruled. All concur. *Page 299