Heard v. Georgia Slate Co.

Lumpkin, J. (After stating the foregoing facts.) There was no partnership created between Mrs. Heard and the Slate Company or VanDeventer. Civil Code, §§ 2626, 2629; South Carolina & Georgia R. Co. v. Augusta Southern R. Co., 107 Ga. 164 (33 S. E. 36). Nor was any technical trust created for her. Civil Code, § 3148. The controlling question is whether there was such a quasi trust or fiduciary relation existing between her and the company or H. E. VanDeventer as to authorize her to have an accounting for the amount of stock received by him in excess of the $30,000 expressed in the deed from the company to Cowham. The rule is well settled that a person occupying a fiduciary relation can not make a secret profit out of it, and that one who is charged with the duty of selling for another can not become the purchaser without the consent of such other person. In the present case the difficulty of arriving at a decision arises, not so much from differences as to rules of law in the abstract, as from the application of them to the facts of the case. As between Mrs. Heard and the Slate Company the contract which they made negatives incidents which ordinarily follow either an express trust or a quasi trust resulting from a fiduciary relationship. It contains, among other things, the following statement. “But it is expressly understood and agreed that nothing herein contained shall in any wise be taken to limit or restrain the said Company in its absolute [613] right and power to sell, lease, or otherwise dispose of said lands and premises as it shall deem fit and proper, on snch terms and conditions as it alone shall or may choose and determine,' as being for its interest, in like manner in all respects as if this agreement had not been made.” Again, it says: “But nothing herein contained shall be in any wise deemed or taken to require a sale by said company, within the period mentioned, of the property to which this agreement relates; it being the intent that it shall be wholly optional with the company to sell or not, at its discretion.” Thus there was no duty on the part of the company to make a sale; and if it did so, it was to be guided'by its own interests, as if no agreement had been made. The only obligation was, that, in case a sale should be made, after reimbursing the company for the stipulated amount of $30,000 and future outlays, it would pay to Mrs. Heard one half of any surplus received for the property. Such an obligation was rather contractual than fiduciary. The president and directors of the corporation were, in a certain sense, trustees for the corporation and its creditors, — for the latter more particularly if insolvency of the corporation should occur. They occupied a fiduciary relationship toward the company. But there was no absolute prohibition against one of them entering into a contract with the corporation, with full knowledge and consent on its part, and when it was represented by other directors and agents. Hugh F. YanDeventer did not act for the Slate Company and also for himself in the making of the trade. The auditor found, and the evidence justified the finding, that the company and its other directors were fully apprised of the facts, and the latter, acted for it. There was no unfair dealing or concealment ,on the part of YanDeventer toward the company. The price paid for the Heard property was all that it was worth. True, YanDeventer, by reason of expert knowledge in regard to the making of cement, took part in the formation of a cement company to which the Heard property was conveyed; but making cement was no part of the business of the Slate Company, nor did YanDeventer receive pay from it for services in regard to the cement company. The amount to be paid to the Slate Company was received by it, and none of that consideration was paid to YanDeventer. In connection with the organization of the Cement Company he received an amount of stock. But the facts disclosed by the evidence do. [614] not show that he was either directly such a fiduciary agent of Mrs. Heard, or that he was such a fiduciary agent of a fiduciary agent of hers as authorized her to have an accounting from him. The auditor found that there was no fraud; that Mrs. Heard was entitled to recover nothing from the Slate Company under the contract between them; and that she was entitled to recover nothing against VanDeventer. We think that the evidence justified bis finding, and that the presiding judge did not err in overruling the objections thereto. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.