On Rehearing. Plaintiffs, in their motion for rehearing, vigorously attack the action of the majority in sustaining the defendants' seventh, eighth, ninth, and tenth assignments, which complained of that portion of the court's decree which, in effect, canceled 400 shares of the defendant corporation's common and preferred stock, which was a part of the 750 shares of stock of the par value of $75,000, issued to Leonardt in payment for the Victorville property. This property cost Leonardt about $35,000, and the jury found that to be its value. The plaintiffs assert that the president of a corporation, while president, cannot acquire property for $35,000 and then sell it to the corporation for $75,000 without revealing to the corporation the price he had paid for same. None of the authorities cited by plaintiff sustain such a broad assertion. Of course, the president of a corporation occupies a fiduciary capacity, and, where he personally acquires property with the view of disposing of it to the company and does do so, he becomes liable to the company for any profit which he may make out of the transaction, unless he makes a full disclosure and the entire contract is open, fair, and honest. There is nothing in the record to indicate that Leonardt acquired the Victorville property for the purpose of disposing of it to the cement company. He acquired it for purposes of his own some time before it was sold to the defendant corporation. The stockholders decided to acquire the property after full discussion and investigation. Leonardt's stock was not voted at the meeting when the decision to purchase was made. The great preponderance of the testimony shows that the property was worth very much more than $75,000. Leonardt testified and it is not contradicted that he had been offered $75,000 for a one-half interest in the property and declined it because he desired his company to get the property. He seems to have acted in perfect good faith with his company. In our original opinion, it was said that the price which Leonardt paid for the property was disclosed at the stockholders' meeting when the purchase of the property was under consideration. This statement was made upon the faith of the statement subjoined to the first proposition under defendants' seventh assignment. The correctness of defendants' said statement was not contested by plaintiffs, and, under rule 41 governing the Court of Civil Appeals (142 S.W. xiv), we were authorized in assuming that the statement was correct. But in the motion for rehearing, plaintiffs challenge this court's finding and say that the price which Leonardt had paid for the property was not disclosed at such stockholders' meeting, and that they remained in ignorance thereof. Under our view of the case, we think this is immaterial; that under the facts detailed above and in the original opinion, the entire transaction was free from fraud, actual or constructive; that Leonardt was guilty of no breach of trust, and did not become liable to the corporation for the profit which he made on the sale of the Victorville property. 10 Cyc. 704-797.
In their motion for rehearing, plaintiffs also complain of the action of this court in according any consideration to the findings of fact filed by the trial court. They made a written motion that the trial court state in writing and file findings of fact such as it found in addition to the facts found by the jury. But they now say they abandoned this motion and that the findings are a nullity, since the case was tried before a jury. We finding nothing in the record to show that the motion was abandoned. And in a case submitted upon special issues, the majority thinks it not improper for the trial court upon request to file findings of fact which definitely show what facts were found by it in addition to the jury's findings and upon which the judgment is based. The Supreme Court seems to have recognized the propriety of so doing. Arkansas, etc., v. Bank, 104 Tex. 187, 135 S.W. 529. It is true the court cannot be required to make up and file such findings (Railway Co. v. Stevens,185 S.W. 390; Jones v. Edwards, 152 S.W. 727), but we think due consideration can be given to such findings made in response to a request therefor. Such findings are pertinent as affirmatively evidencing the facts which the court did in fact find in addition to those found by the jury. By virtue of article 1985, R.S., upon appeal, issues of fact not submitted to the jury and not requested to be so submitted are to be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding. In view of this statute, every issue in this case found by the trial court must be deemed to have been so found. Plaintiffs did not in their brief point out or complain of a single finding made by the trial court as having no evidence to support it. Neither do they do so in their motion for rehearing, and we will assume that every finding of fact made by the court below had some evidence to support it.
All other questions presented in the motion were fully considered, and the views of the majority sufficiently indicated in our original opinion.
The motions for rehearing of both plaintiffs and defendants are overruled. *Page 1132