Petition for rehearing denied June 6, 1933 ON PETITION FOR REHEARING (22 P.2d 325) Counsel for defendant, J.O. Wilson, and counsel for defendant, J.D. O'Neil, have filed very earnest and courteous briefs in support of their motion for a rehearing, in which they claim that we are in error in holding that these defendants were directors of the defendant American Trust Company, at the time said defendant corporation entered into the contract with plaintiff, or any time thereafter; that even if we should hold that these defendants were directors, the evidence does not show that either of them had actual knowledge of, or participated in the fraudulent representations.
We have held in the original opinion that there is sufficient evidence, in the absence of either of these *Page 326 defendants' testimony to the contrary, to show that these defendants were at least acting as directors of the defendant corporation. They must have had knowledge that defendant corporation obtained possession of certain moneys belonging to plaintiff and that it was acting as plaintiff's trustee so far as these funds were concerned. It owed the duty to safeguard and account to plaintiff for these funds.
"It is true that no directors' meetings were shown ever to have been held, and no evidence was introduced showing that actual knowledge was brought home to director R.E. Hansard of the condition of the affairs of the company, or its conduct with respect to the money of plaintiff and his assignors. On the other hand this appellant did not testify or offer any proof showing that she had no such knowledge, or that she could not have obtained it by the exercise of ordinary diligence as a director of the company". Vujacich v. Southern Commercial Company, 21 Cal. App. 439 (132 P. 80).
We see no reason to depart from our original opinion. The rehearing will be denied. It is so ordered. *Page 327