Pac. Co. v. Oil Company, 31 Wyo. 314; American Co. v. Grocery Co., 28 Fed. 835. An expression of opinion after performance is not entitled to any weight in determining validity of contract. Miller v. Robertson, 266 U.S. 243; 22 C.J. 469, 485; Calhoun v. Taylor, 159 N.W. 600; Montgomery v. Pierson, 145 N.E. 771; Provensal v. Michel et al., 265 P. 580; Henderson v. Coleman et al., 19 Wyo. 183; Beck v. Dye, 127 A.L.R. 1022. Appellant was managing a trust. Bryson v. Bryson, 216 P. 391. No oral testimony was relevant in construction of 2% agreement.
[13] Since the evidence was adequate to sustain the court's key finding that defendant was not plaintiff's agent, it follows that none of the burdens imposed on one who is a fiduciary could be imposed on the defendant. [14] Plaintiff, not the defendant, had the burden of proving fraud or misappropriation of corporate funds ( Provensal v. Michel (1928) 89 Cal.App. 594, 597 [ 265 P. 580]). [15] Even where a corporate agent is concerned, misappropriation is a question of fact for the trier of facts. (3 [1965 Rev.] Fletcher Cyc. Corps. ยง 1116, p. 749.) [16] Where a right to an accounting arises only because of fraud, fraud must first be established.