The common law right of a stockholder in a private corporation to examine the books of the company has been materially enlarged and extended by our statute.—Code of 1896, § 1274. In Foster v. White, 86 Ala. 467, this statute received consideration by this court, and it was there held that the statute secures to the stockholder the general right to examine the books at any and all reasonable times, and it was further held that when this right was claimed and refused, he is entitled to a mandamus on the averments that he is a stockholder- of the corporation, that he has demanded the right of inspection, that the time was reasonable and proper, and that the right was denied him. The averments of the petition in the present case, under the above decision, are sufficient. The defendant’s demurrer was properly overruled. Bee also Winter v. Baldwin, 89 Ala. 483.
After a full hearing by the trial court of the evidence on the petition and defendant’s answer, the court in its judgment awarded plaintiff the peremptory writ of mandamus. The rendition of this judgment on the evidence was excepted to by the defendant. The contention there was, and here is, that no sufficient demand and *495refusal were shown, and further, that it was not shown that the defendant was the custodian of the books. The witnesses were examined before the court, and while there is some conflict in the evidence, it cannot be said that there was not sufficient evidence to warrant the trial court in finding that the defendant It-. H. Oobb, although not the nominal custodian of the books, still had the actual custody and control of the sanie. This was sufficient to authorize a direction -of the writ to him, Bergenthal v. Bergenthal, 39 N. W. Rep. 566. The right -of inspection is a present right when the demand is made at a reasonable time, and 'an indefinite delay in according this right i's equivalent to a denial of it. That the petitioner was on unfriendly relations with the officers of the company, and.that he owned stock in a rival corporation, are not, apart from any improper purpose, sufficient grounds for a denial of his right of inspection of the books of the company.—Bergenthal v. Bergenthal, supra.
The defendant set up in his answer that the petitioner’s purpose in wanting to inspect the book was an improper one. This was defensive matter, and the burden was on the defendant to show it, and we are not prepared to say that he has done so. The fact of the petitioner being a stockholder in a rival concern and that he may thereby gain some advantage by an inspection of the books of the defendant company, does not necessarily show an improper purpose in making demand for inspection, and will not deprive him as a stockholder of h:o right of investigation into the management of the affairs of said company. After a careful consideration of the evidence, we see no reason for disturbing the judgment of the trial court.
The witness R. H. Cobb was summoned as a witness by petitioners on a subpoena duces tecum-, requiring him to produce on the. trial of the case the stock book of the Anniston Lime & Stone Company. The defendant objected to the introduction of this book on the ground that the statute provided another mode of securing the book. Tiie ground of objection we think was without merit. When the book was brought into court by the witness in answer to the subpoena, it was wholly im*496material that tliere was another mode of obtaining the book, and it was competent for petitioner to use it, and offer it in evidence.
If any error was committed by the court in its refusal to'permit a cross examination of the witness Cobb by the defendant at the time he produced the stock book and identified the same, no injury resulted, as 'it is shown that later on in the progress of the case full opportunity of an examination of said witness by the defendant was had and exercised.
There was no error in admitting the testimony relative to the condition of the Anniston Lime & Stone Company as to solvency val noto. The insolvency of the company might well tend to show some reason for the petitioner’s anxiety in exercising his right to examine into the company’s affairs. It'certainly tended to rebut the idea that the demand for examination was based solely upon curiosity or other improper motives.
.We find no error in the record, and the judgment of the’city court is affirmed.