to prove this counsel for respondent argue in their application for rehearing that, if the mortgage referred to in the original order had been executed and delivered, no one could doubt that upon its execution and delivery the title would have passed from appellants to Leautaud. From this statement it is assumed that under the facts and circumstances of this case the title passed without the payments having been made. This contention is, however, based upon the theory that, if the appellants unconditionally delivered the chattels to Leautaud without insisting upon their payment in cash, or upon the execution and delivery of the mortgage in the original order mentioned, then the appellants have waived the condition precedent to the passing of title, and that the title to the chattels would have passed. As to whether appellants unconditionally made such a delivery it is contended is a question of fact which, as the opinion now stands, respondent is prevented from trying. When counsel for appellants, at the trial, attempted to show why the chattel mortgage was not executed and delivered, and further of fered to explain why the agreement called a lease was executed in lieu of the mortgage, counsel for respondent objected, and the court sustained the objection. Both court and counsel then entertained the view, no doubt, that wheth er title to the chattels passed or not must be determined as a question of law from the terms of the written agreement entered into between appellants and Leautaud. In view of the issues we think the ruling was correct. In preparing the original opinion we thought, and still think, that, in view of all the facts and circumstances disclosed by the record, the question as to whether the parties intended that the title to the chattels should pass, and whether or not it did pass, is a question of law. In view of this conclusion no other result was possible than the one reached in the original opinion. The application for a rehearing, therefore, should be, and accordingly is, denied.

STRAUP, C. J., and MCCARTY, J., concur.

STATE ex rel. BRANDL v. SILVER KING CONSOLI DATED MINING COMPANY OF UTAH et al.

No. 2051. Decided January 6, 1910 (106 Pac. 520).

1. CORPORATIONS-STOCKHOLDERS-INSPECTION OF CORPORATE BOOKSENFORCEMENT OF RIGHT. In a proceeding to compel a corporation to allow an examination of its books, the testimony of plaintiff that he had not demanded a list of the stockholders and that he had not expressed a desire for such list, where immediately after such statement he corrected his testimony, and testified that he did desire the names of the stockholders, and gave his reasons for wishing such knowledge, does not warrant the finding that plaintiff “has disclaimed any desire to inspect the stock books of said defendant corporation, or to obtain any information as to who said stockholders were." (Page 65.)

2. CORPORATIONS-INSPECTION OF CORPORATE BOOKS BY STOCKHOLDERS -ENFORCEMENT OF RIGHT EVIDENCE. In a proceeding to compel a corporation to allow a stockholder to inspect the corporate books, where defendant's answer admitted that plaintiff wanted to ascertain the names of the stockholders, testimony of plaintiff as to whether he wished to learn the names of the stockholders was irrelevant, there being no issue as to whether plaintiff wanted the names of stockholders. (Page 67.)

3. EVIDENCE

EVIDENCE ADMISSIBLE BY ADMISSION OF SIMILAR EVIDENCE. The mere fact that the court permitted irrelevant evidence could not create an issue where none was presented by the pleadings. (Page 67.)

4. CORPORATIONS-INSPECTION OF CORPORATE BOOKS-RIGHT OF STOCKHOLDERS. Under Comp. Laws 1907, sec. 329, providing that "the books of every corporation must be kept as to show the original stockholders and the transfers thereof," a corporate stockholder has the right to inspect the corporate books to ascertain the names of other stockholders in the absence of any reason for denying such right.1 (Page 68.)

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

1 Clawson v. Clayton, 33 Utah, 266, 93 Pac. 729, distinguished.

Application by the State, on the relation of Joseph Brandl, for a writ of mandate to the Silver King Consolidated Mining Company of Utah, a corporation, and G. W. Browning, secretary.

From a judgment for insufficient relief, relator appeals.

REVERSED.

Snyder & Snyder for appellant.

Henderson, Pierce, Critchlow & Barrette and Howat & Macmillan for respondents.

APPELLANT'S POINTS.

It is no longer the subject of doubt in this state that the corporate books and papers of any incorporation may be examined by a stockholder either in person or through an agent for all lawful and proper purposes, and certainly for the purposes shown in this application. (Compiled Laws of Utah, 1907, section 329; Harkness v. Guthrie, 27 Utah, 248, 199 U. S. 148; Clawson v. Clayton, 33 Utah 266; Cobb v. Lagarde, 129 Ala. 488, 30th So. 326; Mitchell v. Rubber Reclamation Co., 24 Atl. 407; Weihenmayer v. Bitner, 42 Atl. 245, 88 Md. 325; Stone v. Kellogg, 46 M. E. 222, 165 Ill. 192; Foster v. White, 86 Ala. 457, 6 So. 89, Cincinnati Volksblatt Brewing Co. v. Hoffmeister, 56 N. E. 1033; State ex rel. Weinberg v. Pacific Brewing & Malting Co., 21 Washington 451; People v. Goldstein, 56 N. Y. S. 306; 2 Clark & Marshall, p. 1649, 50, note; Stone v. Kellogg, 165 Ill. 204, 46 N. E. 222; In re Steinway, 45 L. R. A., p. 462, et seq.; Notes bottom page 462, 463, 464; Swift v. State ex rel. Richardson, 6 Atl. 856.)

FRICK, J.

Appellant, as a stockholder of the respondent Silver King Consolidated Mining Company of Utah, made application to

the district court of Salt Lake County for a writ of mandate requiring said company and one G. W. Browning, its secretary, to permit appellant, through an expert accountant, to examine the books of said company for the purpose of ascertaining therefrom "the amount of issued stock of said corporation, the names of the stockholders, and the financial condition of said corporation." The court issued an alternative writ, to which the company aforesaid and Mr. Browning, hereinafter designated respondents, filed their

answer, in which they contested the right of appellant to inspect the books of said corporation. Respondents, however, in their answer, admitted that appellant demanded an inspection of the books at the time and for the purposes alleged, but they averred that the reasons stated by him were not the only reasons for which he desired to inspect the corporate books. In view that the court found that the averments in the answer were not sustained by the evidence, we shall not refer to the answer further.

Upon the hearing the court found the facts, in substance, as follows: That said Silver King Consolidated Mining Company of Utah is a corporation incorporated under the laws of Utah; that appellant is a bona fide stockholder of record of said corporation; that appellant had duly applied for and had requested said respondents during business hours to permit him, through an accountant, to examine the books and records of said corporation; and that said respondents refused such request, and refused appellant the right to examine said books and records. The fifth finding of fact, and the only one which is questioned by appellant, is as follows: "That the relator has disclaimed any desire to inspect the stock books of said defendant corporation or to obtain any information as to who said stockholders were." Then follows the finding that "the allegations of defendants' answer are not sustained by the evidence." Upon these findings, the court made conclusions of law by which he found that appellant was entitled to a peremptory writ of mandate "directing and compelling the defendants to permit relator, by a compe

tent and proper agent duly appointed, to inspect all the books of account, vouchers, and records of said defendant corporation except so far as the same may disclose the names of the stockholders of said defendant corporation." (Italics ours.) Judgment was entered in accordance with the foregoing findings and conclusions. The record also discloses that after said judgment was rendered appellant, through his accountant, attempted to inspect the "books of account, vouchers and records," and in doing so a certain voucher for foureten thousand seven hundred dollars and fifteen cents was withheld from the accountant for the reason that the voucher "would disclose the names of stockholders." Appellant then, by motion, applied to the court for a modification of the writ so as to permit him to "examine the sources of receipts and all disbursements, even though the same may disclose the name of a stockholder." The court refused to make the modification, and denied the motion. The appeal is from the original judgment.

Counsel for appellant have assigned a large number of errors, but, as we view the matter, the whole case turns on whether the fifth finding of fact and the conclusion of law, both of which we have given in full, and both of which are attacked by appellant, can be sustained. Counsel for appellant earnestly insist that the fifth finding of fact is contrary to, and is not supported by the evidence. This so-called finding of fact, as we read the record, is not responsive to any issue in the case. Appellant in his application for the writ asked the right to make an examination of the corporate books to ascertain, among other things, "the names of the stockholders." It is true that on cross-examination he, in substance, testified that he was not asking for a list of the stockholders, and that he had not asked the secretary of the corporation for such a list. When, how. ever, his attention was directed to what he had asked for in his application, he at once said, "I remember now," and at once corrected his former testimony by stating that he

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