ON MOTION FOR REHEARING
Appellee challenges our holding that he waived his objection that the defense of abolition of the office, being in confession and avoidance, could not be raised under a general denial but must be specially pled under Rule 94, and consented to the trial of this issue by himself offering in evidence all of the minute books of the meetings of stockholders and directors as well as the by-laws of the appellant. He states that we have mis-stated the record. In view of this assertion, we have again carefully reviewed the statement of facts and have concluded that we were correct in our original opinion.
In the course of the attorneys’ preliminary statements to the court concerning their respective positions in the case, counsel for appellant stated that he would offer in evidence the waiver of notice and the minutes of a special meeting of stockholders of the defendant corporation held on February 27, 1960; whereupon counsel for ap-pellee asked for what purpose this was offered, to which counsel for appellant replied: “Showing the action of the stockholders in connection with the abolishment of the position of executive vice-president” (S.F. 7, Lines 2-6), whereupon counsel for appellee stated: “We are going to object to it, Judge, on the ground that there are no pleadings to support it; it cannot be offered under a general denial. This is a matter of confession and avoidance which *331has to he specially pleaded under Rule 94.” (S.F. 7, Lines 7-11).
Appellant then stated further that it was their position that the office of executive vice-president had been abolished by the stockholders and appellee dismissed and discharged as an employee (S.F. 7, Lines 20-24) and appellee, after pointing out that there was no statutory authority for the stockholders to so terminate the office, continued to object that “if they wanted to show under a general denial that he wasn’t elected and so on, they can’t show that they subsequently terminated the office because that is an affirmative defense, which has to be pleaded specifically under Rule 94”. (S. F. 8, Lines 11-15).
Appellant further offered the waiver by the directors of the special meeting held on the same day, and the minutes, to which the same objection was made. (S.F. 8, Lines 16-21).
The court then said:
“Let me back up a little bit and look at Mr. Andress’ objections. All right, I will overrule the objection and I will admit both the waiver and the minutes of the meeting of the stockholders and the waiver and minutes of the directors meeting.” (S.F. 9, Lines 19-23).
Appellee then made the further objection that the minutes were not properly proven, which the court promptly sustained (S.F. 10, Lines 5-7), and in order to meet that objection the appellant produced Frank Cain as a witness, who identified the minute books as having been in his possession and appellant’s counsel offered the same minutes and some additional ones, which the court had identified (S.F., Lines 11-12) and when appellee again objected that they were still not properly proven, because it was not shown who Frank Cain was (S.F. 13, Lines 19-24), the court required further proof, finally practically proving them up himself, and the following then took place:
“Mr. Andress: We will still object to the introduction of these minutes, Your Honor, because they are not properly proven.
“The Court: I will overrule it, I will admit them.
“Mr. Andress: All right, without waiving that I will take the witness on cross examination.” (S.F. 16, Lines 8-13).
Then the court recognized that the minutes of the stockholders and directors meetings of February 27, the only ones affecting the abolition of the office, were already in evidence (S.F. 25, Line 14; S.F. 33, Lines 11, 20).
Appellee then offered in evidence the minutes of December 9,1959, (S.F. 33, Line 23) which had nothing to do with the abolition of the office, but were the minutes of the meeting at which the appellee was admittedly elected to the office with its appurtenant salary of $1,500 per month (S.F. 5, Lines 14-24).
Then after considerable direct, cross, redirect and recross examination of the witness Cain, none of which is material to the question now under consideration, the court said: “Is there any objection to all of the by-laws of the corporation being considered in evidence, you offered some and Mr. Irwin offered some sections?” (S.F. 40, Lines 2-4). To this counsel for appellee replied: “Judge, I was just about to offer the entire minute books, both the stockholders and directors, and the by-laws of the corporation.” (S.F. 40, Lines 5-7). The court then asked appellant’s counsel if he had any objection, and when counsel said he had none the court said: “All right, that might be preferable.”
It is obvious from the above that the only reasonable interpretation that can be given to the record at this point is that this was an offer without reservation or limitation of all of the stockholders and directors minute books and the by-laws of the corporation. It is obvious that the trial court interpreted what was said as an unqualified tender of those records, and it is obvious *332to us that the court’s statement, “All right, that might be preferable,” meant that he was admitting all of the minute books and all of the by-laws as offered by appellee’s counsel. We so hold.
It will be observed that after first objecting to the introduction by appellant of the minutes of the two meetings of February 27, 1960 on the grounds that appellant had not pled specifically in confession and avoidance, the last two times appellee objected it was only on the ground that the minutes were not properly proven. This in itself tends to show at least tentative abandonment of the objection based on the absence of pleadings, and then when at last counsel for appellee himself unreservedly introduced in evidence all of the minute books, which necessarily included the minutes of the two meetings of February 27, 1960, it was quite obvious that he had abandoned that position and tacitly consented to the trial of the issue as if it had been properly pled.
Counsel for appellee now takes the position in his motion for rehearing that he did not thereby offer the minutes of the meetings of February 27, 1960, that they had already been admitted in evidence over his obj ections, and that all he really introduced were “the remainder of the minute books and of the by-laws, to put in context those minutes which had already been admitted and were a portion of the record over objection,” but the contrary is shown by the record of what he actually said, as above demonstrated.
The technical aspect of appellee’s position is further demonstrated by the following, which is quoted from the statement of facts beginning on Page 47 at Line 16:
“The Court: What does the evidence show with reference to Mr. Wineburgh being a stockholder at the time this meeting was called, that is the stockholders, was held?
“Mr. Andress : Here is the situation, Judge. He was a stockholder of record. The stock certificates issued to him and the members of his family were still outstanding. He had endorsed those and delivered them to Monte Irion, according to Frank Cain. But they had never been canceled on the books of the corporation, and no new stock certificates had ever issued. And accordingly, under Article 1, Section 1 of those by-laws, he and the members of his family were still the stockholders of record.
“The Court: He was still a stockholder of the company?
“Mr. Andress: Yes, sir. And at some time after the Sth of April, 1960, they issued this stock.”
Counsel for appellee made it perfectly clear at the trial that at the time of his dismissal he owned no stock and no beneficial interest in the corporation whatsoever. He also makes this perfectly clear in his brief filed in this court wherein he says:
“Let it be clearly understood that the appellee and his family did not claim any beneficial stockholding interest in the corporation at the time of this purported stockholders meeting. They had signed all of their stock certificates and delivered the stock to Mr. Irion, who in turn delivered it to one Mr. Stevens (S.F. 20), who was identified by Mr. Cain as the chief stockholder of Republic-Odin Corporation which owned Texlite (S.F. 29). The Wine-burghs, therefore, had parted with their beneficial interest, but the transferees had not qualified as stockholders entitled to vote at a stockholders meeting.”
This statement by appellee and the record as a whole show that there was no real dispute in the facts, which makes the case equivalent to one tried on an agreed statement of facts. It was held in Banker v. Jefferson County Water Control & I. Dist., Tex.Civ.App., 277 S.W.2d 130, 135, err. ref. n. r. e., that in such a case the pleadings of *333the parties are not of material consequence.”
The purpose of pleadings being to apprise the opposing party of one’s position in a case, and the positions of both parties having been fully stated orally to the court at the beginning of the trial, and no obj ection being made until the corporate minutes in question were offered in evidence, it seems quite clear to us that under the circumstances the objection lacked substance and, even if meritorious when made, was waived.
In his second assignment of error in his motion for rehearing in this court ap-pellee says we erred in holding that appellee had been removed as a director, making it unnecessary for him to be notified of the meeting of directors, because the point was neither raised nor briefed by appellant. This contention is overruled. Appellee did not sue for the value of his services as a director and his removal as a director was not an ultimate fact to be proven. He sued for salary as an officer or employee, and the ultimate issue was whether he had been successfully removed as an officer and employee. He says that he was not legally removed as an officer and employee by the Board of Directors because he, a member of the Board, was not notified of the meeting and was not present. Purely as an evi-dentiary matter it was shown that he was not a director, and hence not entitled to notice of the directors meeting, because he had previously been properly and legally removed by the stockholders as a member of the board of directors. It was not necessary for this evidentiary consideration to he raised as a separate point in the brief.
Appellee insists there were numerous other errors committed in our disposition of the case, and after carefully considering all of them we find they are without merit and are overruled.
Appellee also asks us under Rule 45S, T.R. C.P., to make certain additional findings of facts. We have carefully considered each of the matters upon which we are requested to make additional findings and, feeling that they are either immaterial or undisputed, we overrule the request.
The motion for rehearing is overruled.