of right of examination, alleged affirmative-driven into the realm of uncertainty, exly: "That the object and purpose of the pense, and delay. Such was not the intent plaintiff is to injure the corporation of of the framers of the Constitution, nor of which defendant is secretary, and to gain the legislature in enacting the statute. The information for the private use of plaintiff, statute is founded upon the principle that in connection with two other corporations, the shareholders have a right to be fully of which plaintiff is a stockholder, engaged informed as to the conditions of the corin a similar business to that of the corpora- poration, the manner in which its affairs tion represented by defendant." are conducted, and how the capital to which they have contributed is employed and managed. The shareholder is not required to show any reason or occasion for making the examination. Nor can he be met with the defense that his motives are improper."

This doctrine is adhered to in Kimball v. Dern, 39 Utah, 181, 35 L.R.A. (N.S.) 134, 116 Pac. 28, Ann. Cas. 1913E, 166, where the subject is treated at considerable length and many authorities reviewed. Among the decisions which seem to regard the statutory rule as being not quite so unqualified as indicated in the California and Wyoming decisions above noticed, we note that of Foster v. White, 86 Ala. 467, 6 So. 88, where, referring to the statute of that state giving the right of inspection, it is said: "The only express limitation is that the right shall be exercised at reasonable and proper times; the implied limitation is that it shall not be exercised from idle curiosity, or for improper or unlawful purposes. In all other respects, the statutory right is absolute. The shareholder is not required to show any reason or occasion rendering an examination opportune and proper, or a definite legitimate purpose. The custodian of the books and papers cannot question or inquire into his motives and purposes. If he has reason to believe that they are improper or illegitimate, and refuses the inspection on this ground, he assumes the burden to prove them such. If it be said this construction of the statute places it in the power of a single shareholder to greatly injure and impede the business, the answer is: The legislature regarded his interests in the successful promotion of the objects of the corporation a sufficient protection against unnecessary or injurious interference. The statute is founded on the principle that the shareholders have a right to be fully informed as to the condition of the corporation, the manner in which its affairs are conducted, and how the capital, to which they have contributed, is employed and managed."

It was conceded that appellants desired to see the list of the corporation's customers and their contracts. In sustaining the striking out of this defense by the trial court, the supreme court said: "At common law the stockholders of a corporation had the right to examine, at reasonable times, the records and books of the corporation. 2 Cook, Corp. § 513; Stone v. Kellogg, 165 Ill. 204, 56 Am. St. Rep. 240, 46 N. E. 222. But the writ would not issue as a matter of course to enforce a mere naked right, or to gratify mere idle curiosity; but it was necessary for the petitioner to show some specific interest at stake rendering the inspection necessary, or some beneficial purpose for which the examination was desired. High, Extr. Legal Rem. 3d ed. § 310. But the great weight of the American authorities is to the effect that where the right is statutory it is not necessary for the petition to aver or show the purposes or object of the inspection. Neither is it any defense to allege that the objects and purposes are improper, and that the petitioner desires to injure the business of the corporation. The clear legal right given by the Constitution and the statute cannot be defeated by stopping to inquire into motives. If this were so, the stockholder would be driven from the certain definite right given him by the statute to the realm of uncertainty and speculation. The small stockholder-whose rights are as sacred in the eyes of the law as those of the rich owner of the majority of the stock-would be refused the right of inspection given him by the statute, and when he comes into court setting forth his rights, and the fact that he is a stockholder, and has been refused permission to inspect the books, he is met by an answer of the corporation setting forth that he is not seeking the information nor the inspection for any legitimate purpose, and that his motives are improper. In the trial of this affirmative defense witnesses are required and expenses incurred. If the court should This language seems somewhat inharfind in favor of the corporation, and deny monious within itself. It would seem that, the petitioner's right, he is driven to an if the custodian of the corporate records canappeal. In the appellate court he is met not question or inquire into the motives by the rule that a finding of fact based upon or purposes of the stockholder in requesting conflicting testimony cannot be disturbed. the examination, that the custodian's right Thus the certain, adequate, and summary to withhold the privilege of examination is remedy for the right given by statute is entirely at an end except as to reasonable

ness of time; yet the court seems to con- | lation or theft of the record, or some other clude that there may be motives and pur- equally unlawful purpose. If the qualifyposes on the part of the stockholder which ing language of those courts means no more would warrant the custodian in withholding than this, we would be inclined to agree the privilege of examination aside from the with them; but there is no such unlawful question of reasonableness of time. We find purpose of relators here alleged or shown. similar observations by the Maryland court We are of the opinion that the inspection in Weihenmayer v. Bitner, 88 Md. 325, 45 of the books and records here sought by L.R.A. 446-457, 42 Atl. 245, where the relators cannot be withheld from them on right of examination was claimed under a the ground that they would thereby acstatute reading: "The president and direc- quire knowledge which would be used by tors of every corporation shall keep full, them in aid of the business of their other fair, and correct accounts of their transac- abstract company, to the detriment of the tions, which shall be open at all times to Kitsap Title Abstract Company. the inspection of the stockholders or members."

The judgment is reversed, with instructions to the trial court to enter its judgment compelling respondents to permit relators to examine the books and records of the company, including its books and records showing the list of its customers and prices paid by them for abstracts.

The court said: "The right thus given to the stockholder is unconditional and unqualified. . . It is stated in the answer to the petition that Weihenmayer is engaged in the manufacture and sale of hosiery and knit goods, and is a rival and competitor of the Windsor Knitting Mills in business, and that he desires an examination of the books, documents, and records of the corporation for the purpose of obtaining information to be used by him in the conduct of his own business, to the WEST VIRGINIA SUPREME COURT injury and loss of the said corporation.

Crow, Ch. J., and Gose, Chadwick, and Morris, JJ., concur.

But the petitioner's right would STATE

not be forfeited by any such cause.

The

right is given to him as a stockholder by

OF APPEALS.

OF WEST VIRGINIA EX REL.
THOMAS G. AULTMAN,

(-W. Va.

Mandamus

V.

84 S. E. 181.)

clerical error

amend

statute, and is absolute, and not made to C. F. ICE, President, et al., Plffs. in Err. depend upon any circumstance but the ownership of the stock. It is easy to see that there might be good reasons for refusing an application; for instance, if it were made for some evil, improper, or unlawful purpose. And, if such purpose were alleged and proved, the writ would be denied."

Whatever the view of the court in this last quoted language is as to reasons and motives on the part of the stockholder warranting the custodian refusing inspection of the records, it is apparent that the fact that such stockholder is interested in a rival concern which is in competition with the corporation, and might, by the examination of the books of the corporation, acquire and use knowledge in aid of the other concern to the detriment of the cor

poration by way of competition, his right to the inspection of the books would not thereby be affected in the least. It is possible that the Alabama and Maryland courts had in mind a possible inspection of the books and records of the corporation by a stockholder with a view of disclosing some secret process of manufacturing an article, possessed and used by the corporation, or where the motives and purpose of the stockholder would be to get temporary possession of a record for the purpose of muti

ment. 1. A clerical error in the date of the issuance of a mandamus nisi may be cured by an amendment.

tory writ of mandamus, unaccompanied by a replication to the return to the alternative writ, is equivalent to a demurrer to the

inspection of books

return.
Corporation
director.
6. That the inspection sought by a di-
rector may disclose a right of action in him
against the corporation or some
agents does not preclude his right to in-
spect the books, papers, and records of the
corporation.
Mandamus

of its

P. R. Co. v. San Francisco, 27 Cal. 655; Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405; Beard v. Lee County, 51 Miss. 542; State ex rel. Clark v. Smith, 104 Mo. 661, 16 S. W. 503; State ex rel. Walnut Street R. Co. v. Neville, 110 Mo. 345, 19 S. W. 491; People ex rel. Bentley v. Highway Comrs. 7 Wend. 474; People ex rel. Tenth Nat. Bank v. Board of Apportionment, 64 N. Y. 627; People ex rel. Lawrence v. Westchester County, 73 N. Y. 173; People ex rel. Sickles v. Becker, 3 N. Y. S. R. 202; Haebler v. New York Produce Exch. 149 7. An averment, in general terms, that N. Y. 414, 44 N. E. 87; State ex rel. respondents are advised that one of the Hurt v. Alexander, 115 Tenn. 156, 90 S. purposes of the relator, in seeking such W. 20; State ex rel. Rumbold v. Gordon, inspection, is to enable him to obtain knowl- 238 Mo. 168, 142 S. W. 315, Ann. Cas. edge of the corporate business for communication to rival or competing concerns, unsupported by any allegation of facts, indicating the source of such information, the identity of such rival concerns, or connection of the relator therewith, is too indefinite, and therefore insufficient as a defense

· defense

to the writ.
Corporation
aid of agent.

for inspection of books
indefiniteness.

8. A director of a corporation is entitled

to have the assistance of his attorney or agent, in the exercise of his right to inspect its books, papers, and records, provided the latter has no interest adverse to the corporation, rendering his employment therein improper.

(January 12, 1915.)

RROR to the Circuit Court for Marion County, to review a judgment affirming a judgment of the Intermediate Court, awarding a writ of mandamus compelling respondents to permit relator to inspect the books, records, and other documents of a a company in which he was a stockholder. Affirmed.

The facts are stated in the opinion. Messrs. George M. Alexander, Charles Powell, and A. J. Colborn, for plaintiffs in error:

1913A, 312; Cummings v. Armstrong, 34 W. Va. 1, 11 S. E. 742; Note to Re Steinway, 45 L.R.A. 461; Legendre v. New Orleans Brewing Asso. 45 La. Ann. 669, 40 Am. St. Rep. 243, 12 So. 837; Stone v. Kellogg, 165 Ill. 192, 56 Am. St. Rep. 240, 46 N. E. 222; People ex rel. Bishop v. Walker, 9 Mich. 328; State ex rel. Rosen

feld v. Einstein, 46 N. J. L. 479; People

ex rel. McElwee v. Produce Exch. Trust

Co.
53 App. Div. 93, 65 N. Y. Supp. 926;
Re Coats, 73 App. Div. 178, 76 N. Y. Supp.
730; Re Kennedy, 75 App. Div. 188,
77 N. Y. Supp. 714; Hemingway v. Hem-
ingway, 58 Conn. 443, 19 Atl. 766; Mitchell
v. Rubber Reclaiming Co. N. J. Eq.
24 Atl. 407; Lipscomb v. Condon, 56 W. Va.
433, 67 L.R.A. 670, 107 Am. St. Rep.
938, 49 S. E. 392; State ex rel. Matheny
v. County Ct. 47 W. Va. 672, 35 S. E. 959.
Mr. Charles B. Johnson, for defendant
in error:

Relator was entitled to amend.

Mason v. Ohio River R. Co. 51 W. Va. 183, 41 S. E. 418; Hebb v. Clayton, 45 W. Va. 578, 32 S. E. 187; Fisher v. Charleston, 17 W. Va. 628; Miller v. Zeigler, 44 W. Va. 484, 67 Am. St. Rep. 777, 29 S. E. 981.

The writ need not recite filing of peti

It was error to overrule the motion to tion. quash the alternative writ.

Fisher v. Charleston, 17 W. Va. 595; Lipscomb v. Condon, 56 W. Va. 416, 67 L.R.A. 670, 107 Am. St. Rep. 938, 49 S. E. 392; Hebb v. Cayton, 45 W. Va. 578, 32 S. E. 187; Doolittle v. County Ct. 28 W. Va. 158; People ex rel. Leach v. Central Fish Co. 117 App. Div. 77, 101 N. Y. Supp. 1108.

It was error to sustain plaintiff's motion for a peremptory writ, and to award the

same.

13 Enc. Pl. & Pr. 699, 708; 2 Spelling, Inj. § 1674: Swann v. Work, 24 Miss. 439; Smith v. St. Lawrence County, 148 N. Y. 187, 42 N. E. 592; People ex rel. Central

Fisher v. Charleston, 17 W. Va. 628; Highs, Extr. Legal Rem. § 530.

Relator was entitled to inspect with the agent.

2 Cook, Corp. 6th ed. § 516; 10 Cyc. 958; 26 Am. & Eng. Enc. Law, 954; Mitchell v. Rubber Reclaiming Co. N. J. Eq. 24 Atl. 407; Foster v. White, 86 Ala. 467, 6 So. 88; People ex rel. Clason v. Nassau Ferry Co. 86 Hun, 128, 33 N. Y. Supp. 244; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 48 L.R.A. 732, 78 Am. St. Rep. 707, 56 N. E. 1033; Ellsworth v. Dorwart, 95 Iowa, 108, 58 Am. St. Rep. 427, 63 N. W. 588; People ex rel. McInnes v. Columbia Paper Bag Co. 103 App. Div.

10 Cyc. 962; High, Extr. Legal Rem. § dent and secretary and treasurer of a cor311; 2 Spelling, Inj. & Extr. Rem. § 1635;poration known as the Fairmont Box Car 20 Enc. Pl. & Pr. 796, 797; Wood, Man- Loader Company, to permit the relator, a damus, p. 12; Swift v. State, 7 Houst. stockholder in the company and a director (Del.) 338, 40 Am. St. Rep. 127, 32 Atl. thereof, to inspect the records, books, 143; People ex rel. Muir v. Throop, 12 papers, contracts, and other documents beWend. 183. longing to it and in their custody, and allow him the privilege of assistance by his agent in so doing.

terests of a person having no notice and not in any sense represented are to be affected, as in Armstrong v. County Ct. 15 W. Va. 190.

The remaining ground of the motion is likewise untenable. Under some circumstances, the relator has admitted right of inspection in either and both capacities, and the same relief would be granted in either case. If the facts set forth in addition to the averment of his character as a stockholder do not confer such right upon him as a stockholder, but do give it to him as a director, the averment of his ownership of stock can be treated as harmless surplusage. Sprinkle v. Duty, 54 W. Va. 559, 46 S. E. 557. If, on the contrary, he has the right in both capacities, relief could not be denied him because he has unnecessarily shown himself to be doubly entitled to it.

The corporation was organized in November, 1905, under a charter issued under the laws of this state in October, 1905, to A. W. Rapp, Chas. L. Merrifield, C. D. Fleming, A. C. Ice, and S. A. Boehm; but Geo. T. Watson, Chas. F. Ice, and John H. Huhn took the bulk of the capital stock, in consideration of their assignments to the corporation of certain United States patents and applications for such patents then pending, all of which were for box car loaders and improvements upon such machines. Each of them so obtained 65 shares of the par value of $100 each. Only seven additional shares were issued. There is some controversy as to equitable interests and rights in the patents and applications for patents, but they are of minor importance, if at all material. The corporation does not manufacture any of the patented machines. They are made, exploited, and Recital here of the contents of the plead- marketed by the Fairmont Mining Machinings, or even of the substance thereof, ery Company, under a verbal contract, and would not materially aid in the solution of the net profits divided between the two corthe questions raised. The writ, return, porations. They are used by the Fairmont and amended return all cover unnecessary Coal Company and the Consolidation Coal ground and partake largely of the character Company, allied concerns, and unfairness of the pleadings in an equity suit. Right to the Box Car Loader Company and its of personal inspection is not denied. On stockholders, in the relations of these comthe contrary, it is distinctly admitted and panies, is charged. The relator seems to had been formally invited. Only the al- be of the opinion that the Box Car Loader leged right of inspection by an agent or Company should erect a plant and manuattorney is denied, and this denial is sup- facture and market its own machines. Litplemented by the assertion of impropriety tle, if any, materiality in the contentions in the purpose for which the inspection is respecting these matters is perceived. Aultdemanded. A few days before the writ was man, the relator, purchased Huhn's stock obtained, the relator caused a written de- and such other rights and interests as he mand for the right of inspection by himself had in and against the company, on the and his agent or attorney to be served on 15th day of June, 1909, and was subsethe respondents. The president responded quently elected a director. At the date of thereto by a letter, conceding in the most the award of the mandamus nisi, Aultman comprehensive terms the right to inspect was prosecuting an action of debt against as a director, and tendering for such pur-Huhn for the recovery of $400 which he pose all books, papers, and records of the company; but the letter was silent as to the admission of an agent or attorney for such purpose. On the occasion of the delivery of the notice or demand, however, the right of inspection by agent or attorney was expressly denied and has never been conceded or admitted, and is not now.

Deeming the return and the amended return insufficient, the relator moved the court to grant the peremptory writ, and neither formally demurred nor replied. All parties treat the motion as the equivalent of a demurrer to the return and the amended return. Courts generally so regard it. Fisher v. Charleston, supra; People ex rel. Central P. R. Co. v. San Francisco, 27 Cal. 655; Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405; Beard v. Lee County, 51 Miss. 542; State ex rel. Clark v. Smith, 104 Mo. 661, 16 S. W. 503.

claimed had been wrongfully paid to Huhn by the corporation or some of its agents. Dismissing said action, he commenced another action, one of assumpsit, against Huhn on the same demand, which seems to have been still pending at the date of the judgment here complained of. These facts, suggesting the possibility of a claim by the relator, against the company or some of its agents, on account of transactions with Huhn, constitute the basis of a charge of improper motive or purpose in the demand for inspection. They are supplemented by an averment, in general terms, of the existence of keen and active competition in the business of supplying car loading machines, and purpose on the part of the relator to obtain knowledge of the methods of the company and facts in its possession, for communication to its competitors, to its injury and damage. The alternative writ