On Petition to Rehear.
In a petition to rehear, the defendants have respectfully called to our attention two questions which were not specifically considered in our original opinion. These questions are: (1) Did the complaint in his rebuttal testimony repudiate his previous testimony with reference to the alleged agreement, and (2) did the Chancellor *575err in overruling the defendants’ motion for a new trial on the ground that the contract sued upon was invalid and unenforceable under the Federal Defense Production Act of 1950? These questions were made in the following-three assignments of error:
“1. The Court erred in overruling the motion for new trial and the motion for judgment notwithstanding the verdict filed by the plaintiffs-in-error because there was no evidence to support the verdict, and the defendant-in-error admitted that there was no such contract as sued upon. The Court should have sustained the motion for new trial and should have sustained the motion for judgment notwithstanding the verdict. * * *
“2. The Court erred in overruling the motion for new trial and the motion for judgment notwithstanding the verdict filed by the plaintiffs-in-error because there was no evidence to show the statute of frauds has been complied with, and the defendant-in-error admitted that there was no such contract as was sued upon to furnish the foundation for the operation of the rule of part performance within the meaning of the statute of frauds. The Court should have sustained the motion for judgment notwithstanding the verdict. * * *
“3. The Court erred in overruling the motion for new trial filed by plaintiffs-in-error because the contract sued upon was contrary to the Defense Production Act of 1950 of the Congress of the United States as amended, the Executive Orders, proclamations and regulations promulgated under said Act, and contrary to public policy. The Court should have sustained the motion for new trial. * *
*576In support of tlie first proposition presented on the petition to rehear, as well as by .assignments 1 and 2, the defendants rely upon alleged inconsistent statements made by the complainant in his testimony. On direct examination the complainant testified that the verbal agreement to sell him the 300 shares of stock was made in April 1951, before the Park National Bank refused to make the $150,000 loan to Keen, and on rebuttal he testified that a memorandum in his handwriting (defendants’ Exhibit No. 19), was made in Keen’s office after the date of the Bank’s refusal, during negotiations with Keen for the purchase of 500 shares or $50,000 worth of the Company’s stock. Because of complainant’s admission that the written memorandum was not made until after the Bank’s refusal to make the loan, it is insisted that this admission showed that the alleged verbal contract was not only incomplete at that time, but showed that there had never been a meeting of the minds, and that his entire testimony should be disregarded. We find no merit in this insistence as the complainant’s admission could not be considered as conclusive in the light of the other portions of his rebuttal testimony, as follows:
“Q. Mr. Buice, during the examination by the defendants of Mr. Keen in this lawsuit, there was introduced here as Exhibit 19 a work sheet, have you ever seen that sheet before? A. Yes, sir.
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“Q. When did you first see that paper, Exhibit 19, on which these figures are on it? A,. It was some time before we negotiated the deal with Mr. Scruggs to take his real estate. I mean trade Mr. Keen’s real estate and make a deal to close it with Mr. Scruggs.
*577‘ ‘ Q. That’s in yonr handwriting, it it not ? A. Yes, sir.
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“Q. Now Mr. Bnice, when was it with reference to the time you were turned down on the $150,000.00 loan at the bank that you were trying to get to buy the Scruggs stock that you saw that, was it after that or before? A. It was afterwards.
“Q. What was the occasion for all these figures put down here on this paper by you? A. Well, Mr. Keen and I was discussing the possibility of trying to raise some money. We were up against a proposition.
“Q. You had been turned down on your loan at the bank? A. Yes, sir. And Mr. Keen asked me if I could raise any money and I told him I didn’t know, and he said, ‘If you can raise $50',000.00 I will sell you twenty-five percent of this company or five hundred shares of stock for $50,000.00.’ I said, ‘I don’t know whether that is possible or not. I certainly will try it.’ I said, ‘What could I tell them about our company?’ I discussed with him regarding’ the stock, using it as collateral. He said, ‘Sure, you can use it as collateral.’ I said, ‘I would have to have something, some way of convincing whoever I would borrow the money from the company or stock is worth a certain amount of money.’ He said, ‘I can give you a statement on it showing what it is worth.’ I said, ‘I will do all I can. I will try it.’
“Q. What happened to that paper ? A,. I gave it to Mr. Keen.
*578“Q. And that was in the spring of 1951? A. Yes, sir.
“Q. What about this writing, three hundred shares at $100.00 a share, was that on it at that time? A. No, sir.
“Q. Now about $35,000.00', was that on it at that time? A. I don’t recall it. I was trying to figure interest about what it would be on $30,000.00.
“Q. You left that with Mr. Keen? A. Yes, sir. I did.
“Q. Did you go and try to raise $50,000.00, Mr. Buiee? A. Yes, sir. I did.
“Q1. To whom did you go and whom did you talk with about it?
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A. Mr. David Chambers.
“Q. What does he do and where does he live? A. At that time I believe he lived in an apartment on Laurel Avenue and bought a house, and I called him and he come to my home.
“Q. What does he do? A. Professor or Associate Professor at the University of Tennessee.
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‘ ‘ Q. Did you get the money from him or through him? A. No, sir. He tried to obtain it and couldn’t get it for me.
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“Q. Was that before you came to your agreement with Mr. Keen on the three hundred shares there on this other contract you related here on direct examination last week? A. Yes, sir.
“Q1. Did it become necessary for you to raise $50,000.00? A. No, sir. Not after we negotiated *579the deal Mr. 'Scruggs taking the property and the hank let us have $60,000.00, we worked it out without that.
“Q. Did you tell Mr. David Chambers how much money you wanted to borrow in the first instance? A. Yes, sir. I sure did.
“Q. How much? A. $50,000.00'.
“Q. Did you later tell him that you didn’t need the money? A. I told him we had worked out a deal with Mr. Scruggs and had been able to purchase the company, and Mr. Keen was selling me three hundred shares of stock for $30,000.00.
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“Q. Was your last conversation with Mr. Chambers about the matter, was that before the deal was closed with Scruggs and Keen and Scruggs Equipment Company? A. Yes, sir.
“Q. Mr. Buice, when were these figures, three hundred shares at $100.00 per share put on there by you, when did you next see that piece of paper? A. When we had our agreement a few days after this occasion here, after we had made other arrangements.
I was in Mr. Keen’s office and I brought up the stock business again and he said, ‘Well, Jack, I am not going to sell you but three hundred shares of stock at $100.00 a share,’ and I said, £I would like to have as much as you would let me have and to show you my good faith I am not scared of it.’ He says, ‘That’s as much as I am going to sell you, three hundred shares at $100'.00 a share,’ and I wrote it down at the time. * * * ”
On cross examination the complainant further testified regarding the written memorandum, as follows:
*580“Q. When were these figures all written down, written down there in the presence of Mr. Keen? A. Written in his office. I picked np that pad off his desk, that sheet of paper came off of. I am not positive but believe it did.
‘ ‘ Q. When do you say it was with relation to when the Park National Bank turned down Mr. Keen, was it before or after that date? A. What date?
“Q. The day yon say Park Bank .turned down Mr. Keen? A. I don’t recall the date.
“Q. You don’t remember whether this was before that date or not? A. It was after that date, before he went to the Hamilton Bank, if I remember correctly.
“Q. You say yon don’t know the date the bank turned you down? A. I couldn’t remember the date on that. There was too much going on around there and I couldn’t tell the date. Some time in the early spring.
“Q. At any rate your plans to try to help Keen finance entirely failed, is that right? A. It failed in that source, I tried. * * * ”
The following testimony of Dr. David Chambers, Associate Professor of Statistics at the University of Tennessee, corroborates that of the complainant with reference to the attempted loan, the time, etc.:
“Q. Mr. Chambers, tell the Court and Jury whether or not back in 1951 you had a conversation or conversations with Mr. Buice concerning’ some stock in the Scruggs Equipment Company, and if so, relate to us what that conversation was?
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“A. Yes.
*581“Q. When w,as it, Mr. Chambers? A. In the spring of last year, that’s the spring’ of 1951.
“Q. What statements, if any, were made by Mr. Bnice to yon, and where were yon when the statements were made ? A. I encountered Mr. Buice late in the afternoon at Bay’s Market on Kingston Pike .and he walked np to me and said, “Tell me where I can get $50,000.00 right away. ’ I was quite flattered. I thought he was joking but it developed he was serious and I asked him why he needed this money and he told me Mr. Keen and Mr. Scruggs had agreed on some sort of deal whereby Mr. Scruggs would leave the Scruggs Equipment Company and that the transaction was supposed to he consummated by the payment of a certain amount of cash to Mr. Scruggs by Mr. Keen. He said Mr. Keen had made some trips to the bank to raise money .and had been unable to get the funds together and had informed him that if he could raise some money so this deal could go through he would sell him five hundred shares or a quarter interest in the business, in the Scruggs Equipment Company for $100.00 a share, which figured to be $50,000.00. Of course, I had no such sum as that, but I did have a friend here in town who would be capable of making such investments, and I promised Mr. Buice I would contact him immediately and find out whether he would be interested.
“Q. Later after your friend told you that he had no desire to make such investment, did you later and after that again see Mr. Buice? A. The next time I saw Mr. Buice I told him I was unable to help him raise this $50,000.00.
*582<£Q. About Ilow long was this after your first conversation with Mr. Bnice? A. Roughly two weeks.
‘ ‘ Q. What, if anything, did Mr. Buice say to you when you told him your friend would not make the $50,000.00 loan on this stock ?l A. He said that was alright anyway. He had been working with Mr. Keen and Mr. Scruggs on another type deal, whereby Mr. Scruggs and Mr. Keen were going to exchange something about real estate they owned jointly and they wouldn’t require the money they originally needed, but Mr. Keen would let him have some stock anyway. I said, ‘What does this mean to you, do you still get the five hundred shares, and he said ‘No, three hundred shares,’ and I asked if the price was $100.00 a share and he said, ‘Yes.’
“Q. Did he say how it was to be payable? A. Be payable over a period of time.
“Q1'. Do you have any interest in this lawsuit? A. None whatsoever.
“Q. And this conversation you related to the C'ourt and Jury occurred in the spring of 1951? A. That’s right.”
Thus we conclude that the complainant’s alleged contradictory testimony was not fatal, as there was other credible evidence to support his contention that the contract was made in April or the “spring” of 1951.
The rule is well established in this state that where an interested party in his testimony makes a material statement of fact negativing his right of action or defense, and no more favorable testimony appears, he is bound by it. Johnston v. Cincinnati, etc., Ry. Co., 146 Tenn. 135, 157, 240 S. W. 429; Harris & Cole Bros. v. *583Columbia Water & Light Co., 114 Tenn. 328, 341, 85 S. W. 897; McLemore v. Charleston & M. R. Co., 111 Tenn. 639, 69 S. W. 338. However, where there is an explanation, or as here, where other credible evidence is presented, the weight and credibility of the negative testimony becomes a question for the determination of the jury and cannot be determined by the court as a matter of law. See Annotations 80 A. L. R. 627; 169 A. L. R. 798. Furthermore the jury under the evidence presented could have found that they also discussed other matters, including the 500 shares of stock, not made a part of the agreement.
In support of the second proposition presented in the petition to rehear, as well as by assignment 3, the defendants contend that the Chancellor erred in refusing to grant a new trial on the ground that the agreement sued upon was in violation of certain regulations issued under the Defense Production Act of 1950. Exhibits of these regulations were attached to the defendants amended motion for a new trial and were not introduced in evidence. As previously pointed out, the defendants in their answer neither relied upon these regulations nor made any reference thereto during the entire trial of the case, nor is it insisted that these regulations were newly discovered evidence. No showing was made below, and none has been made here as to why this defense was not seasonably interposed, or just why the regulations were not introduced in evidence during the trial.
The Defense Production Act became a law in September, 1950, and the regulations relied upon by the defendants were promulgated subsequently thereto. The original bill was filed on November 24, 1951, to which the Chancellor sustained the defendants’ demurrer and the complainant appealed. The action of the Chancellor *584was reversed by the Supreme Court ou June 7, 1952, and the case was reinstated on the Knox County Equity Docket on August 19th. Defendants’ answer was filed on September 12,1952, and the trial started two months later on November 24th. Meantime the defendants knew, or should have known, of the existence of the Act and the regulations promulgated thereunder, but made no attempt either to amend their original answer to rely thereupon, or introduce the regulations in evidence. We think it a sound rule of law that where a party omits to procure evidence which, with ordinary. diligence, he might have procured, his motion for a new trial for the purpose of introducing such evidence should be denied. Zirkle v. Stegall, 163 Term. 323, 43 S. W. (2d) 192; Tabler v. Connor, 60 Tenn. 195.
In Tennessee Procedure in Law Cases, it says:
“'Owing to the unusual nature of this application the movent should set forth such circumstances as will relieve himself and his attorney from the implication of negligence in the preparation of his case for trial.
“This stringent requirement has been imposed and is rigidly observed because of the very wide discretion which trial judges have in dealing with applications for new trials made upon newly discovered evidence. If the circumstances are suggestive of bad faith or lack of diligence upon the part of the movent in the preparation of his case for trial, and particularly in the matter of discovering the evidence relevant to his case, the motion should be overruled. Factors to be taken into consideration are these: the length of time in which a cause has been at issue; the nature and notoriety of the case, particularly *585about which the evidence of the absent witnesses is desired; also, everything pertaining to carelessness or lack of diligence or the reverse. If any of the faults in conduct above indicated appear during the deliberations upon the motion, the motion should be overruled. While trial courts are clothed with a very wide discretion in this regard and the failure to grant a new trial upon this ground will seldom be reversed, the appellate courts may, and indeed they should, remand for a new trial where the verdict seems to be unjust and where the loser presents a strong showing of recently discovered evidence for the non-production of which he is not to blame.”- Sec. 1575, p. 619.
In Zirkle v. Stegall, supra [163 Tenn. 323, 43 S. W. (2d) 193], the Court said:
“The discretion of a trial judge in matters like these is broad, and we could not interfere with the exercise of this discretion by the court below on the showing made here. The affidavits do not disclose sufficient diligence on the part of plaintiffs below. As stated above, this case was tried twice in the circuit court, and it seems to us that, had plaintiffs made sufficient effort, they might have procured on the hearing this testimony, to present which they seek a new trial.”
For reasons indicated we are constrained to adhere to the conclusions heretofore reached, and the petition to re-hear will be denied.
McAmis, P. J., and Hale, J., concur.