On Motion for Rehearing.
Appellant urgently insists that we erred upon original hearing in holding that there was evidence sufficient to support the finding that in the year 1910, after the First State Bank & Trust Company decided to liquidate, defendant Reeves agreed to purchase the A. J. Anderson stock and to discharge' the note executed therefor. It is insisted that the testimony of Anderson, quoted in our opinion in discussing the question, was only evidence which remotely tends to sustain the finding, and that such testimony was itself insufficient, in that it amounted to no more than a mere reminder of the alleged former agreement of Reeves that the stock subscribed for by Anderson should be held as the property of Reeves, who would pay therefor. In addition to that testimony, Anderson further testified as follows:
“I would like to make a statement in regard to my attitude on this question of buying out the other stockholders at the time this Capps receivership business came up, and in the conversation that occurred between the three of us there, Mr. Reeves, Mr. Ripy, and myself. It may be hard for the jury to understand this. This is exactly the way it happened, as nearly as my recollection serves me. That young lady that was in the office, the bookkeeper, Miss Fillinger, phoned me to come up there. I went up to the office, and when I got there I met Mr. Ripy at the office; they had telephoned him to come up; we had a little meeting there just prior to the meeting that we had with Capps and Hawes and that bunch. We were discussing that fee. Mr. Reeves said he would never, never in the world, pay such a fee as that. I told him I thought it was a holdup, too; absolutely a holdup fee. We then went a little further, discussing the matter, and finally we in, that little meeting voted for Mr. Reeves finally to take over all the stock, buy out all the rest of the stockholders, because he at that time owned, if my recollection serves me correctly, S6 per cent, of the stock, 84 to 86 per cent., already owned by him; and, rather than to have Capps tie it all up in a lawsuit, and probably put the bank’s assets in the hands of a receiver, where the expense would eat it up, I advised him that it would be better for him to take it all over. . He said, ‘Well, wait until we meet this now, and we will go after that a little farther.’ So we got into that next meeting right away, a few minutes thereafter, and that discussion came up, and Capps was very positive that he would not take a 5-cent piece less than the $5,000 for his service, and if we did not pay that he.threatened right then and there to put the bank’s assets in the hands of a receiver, so it was up to Mr. Reeves tq do something, and we asked Mr. Reeves if he would not then formally promise tq buy the stock of the bank, and he said, yes,'he would do that in order to get rid of Capps, and he said he would do that and allow Capps his $5,-000 fee, and we all voted for that measure.”
The witness Ripy testified to the same meeting referred to in Anderson’s testimony last quoted, and testified substantially to the same effect as did Anderson with reference to what occurred at that meeting.
The motion for rehearing is overruled.