Appellants assign as error the order of the court striking paragraphs 8, 9, 10, and 12 from the answer. Paragraph 8 refers to the law of 1919 pro'viding that no corporation is permitted to sell, or offer for sale, its stock in the state of Utah without receiving a license or complying with the provisions of the law. Paragraph 9 alleges that a certain corporation, the Congressional Oil Company, has not complied with the law. Paragraph 10 alleges that plaintiff in order to evade the law, and for blackmailing purposes, has made a partial list of defendants' stockholders and is engaged in sending through the mails to them literature signed with his name urging them to buy Congressional Oil stock. It is also alleged that it is the purpose and intention of said plaintiff to make a further list of said stockholders and to further circularize and offer for sale said Congressional Oil stock in defiance of the state law. [4] It does not appear from the paragraphs mentioned that the Congressional Oil Company has offered its stock for sale, or that it is engaged in the business of selling its stock, or that it intends so to do without complying with the law. No charge is made against the Congressional Oil Company in these respects, and as far as plaintiff is concerned as an individual he is not within the purview of the law. The law prohibits corporations only, and, as before suggested, no charge is made against the corporation. [5] Paragraph 12 refers to certain sections of the statute making it unlawful for any person to print or publish misleading or fraudulent advertisements. It is then alleged that the plaintiff in violation of such law is using a list of the stockholders of the defendant company to send through the mails to them misleading and fraudulent advertisements. What these advertisements are, and whether or not they are fraudulent and misleading, the court has no means of determining from any specific allegation. Neither does it appear that the allegations in paragraph 12 have any relevancy or materiality whatever as a defense to the action. The trial court did not err in striking these paragraphs from the answer. Appellants also assign as error the order of the court rendering judgment on the pleadings. As far as this assignment is concerned, it must be conceded that the court erred in entering judgment on the pleadings for the reason that the complaint, as hereto fore determined, does not state sufficient facts. But assuming that the complaint is invulnerable as against the demurrer interposed, the question is: Do the remaining paragraphs of the answer state facts sufficient to constitute a defense? In determining this question the admissions and denials in defendants' answer must be considered as well as the matter set up as an affirmative defense. If the matter contained in the admissions and denials is not materially qualified by the matter affirmatively alleged, we have no difficulty in determining that the answer is sufficient, for it is denied that the plaintiff is a bona fide stockholder and also denied that plaintiff was refused permission to inspect the books. This, if true, constitutes a complete defense. The question is, however: Does the affirmative matter alleged so far qualify the admissions and denials as to render the answer insufficient as a whole? Even in the affirmative matter of the answer, it is alleged that plaintiff was permitted to see the books and that he then proceeded to make a list of the stockholders. It is also affirmatively alleged that plaintiff had never requested and been refused access to the books of the corporation. For these reasons we are of the opinion it was not a case for judgment on the pleadings and that the court erred in rendering such judgment. Having arrived at this conclusion, we are only justified in proceeding further on the ground that as the case will, presumably, be tried again, it is necessary to determine whether certain affirmative matter alleged in the answer constitutes a defense to the action. The substance of the allegations material to be considered in the remaining paragraphs is as follows: Defendants allege that plaintiff is engaged in a cut-rate brokerage business; that plaintiff obtained a certificate for 2,000 shares of stock of defendants' company which had been assigned to an unknown person, and that plaintiff, by means of acid, had erased the name; that plaintiff had presented the stock so mutilated to the defendants for transfer, which, on advice of counsel, was refused; that since said refusal plaintiff at various times has threatened to blackmail defendants through the mail and newspapers and by such means force a transfer of the stock; that plaintiff was permitted to see the books and proceeded to make a list of the stockholders; that plaintiff has never requested and been refused an inspection of the books; that his sole request is to make a list of the stockholders for blackmailing purposes and use such list as blackmailing list and to sell to the stockholders of the defendants stock in the Congressional Oil Company; that defendants are engaged in equipping their plant for the general reduction of ore in Salt Lake City and the manufacturing of paint, and to raise funds for such purpose have sold a large amount of treasury stock of said company on contracts and part payments; and that plaintiff, actuated with malice and for his own benefit, has sent through the mails representations to defendants' stockholders to induce them to breach their contracts with the defendants and buy stock from the plain (193 P.) tiff. Finally, defendants allege that such except as to the affirmative allegations that purposes are unlawful and that plaintiff's defendants permitted plaintiff to see the sole purpose in seeking the writ of mandate books and never denied his request to inis to enable him to obtain a further list of spect them, we are of the opinion no error the defendants' stockholders for the afore- would have been committed. said unlawful purposes. The foregoing constitutes the propositions material to be considered. [7] There is no question in this jurisdiction as to the right of a bona fide stockholder of record to inspect the books of the cor eral cases decided by this court. Clawson v. Clayton et al., 33 Utah, 266, 93 Pac. 729; State ex rel. v. Silver King Consol, Mining Co., 37 Utah, 62, 106 Pac. 520; Kimball v. Dern, 39 Utah, 181, 116 Pac. 28, 35 L. R. A. (N. S.) 134, Ann. Cas. 1913E, 166. In the case last cited the court in concluding its opinion said: "The statute gives the stockholder the absolute and unconditional right to inspect the books of the corporation, and it is the duty of this court to give it such effect." [6] While it is alleged that plaintiff is en-poration. The right has been upheld in sevgaged in a cut-rate stock brokerage business, the materiality of such allegation is not apparent. Neither does it appear that plaintiff's erasure of the name of the unknown assignee from the stock certificate was wrongful, for it may have been done with the knowledge and consent of the assignee. The answer nowhere negatives plaintiff's right to erase the name. Defendants' refusal to make the transfer and plaintiff's threat to blackmail the company become utterly immaterial in view of the allegation that plaintiff was permitted to see the books and that defendants never denied his request to inspect them. The allegation that plaintiff de sired the list for blackmailing purposes and has mailed the list to defendants' stockholders to sell them stock in the Congressional Oil Company is not shown to have been improper much less unlawful. It does not even appear that the Congressional Oil Company was a competitor of the defendant company or that the defendants' business would be in the least degree affected by the alleged conduct of the plaintiff. Besides this, we know of no legal reason why a mere stockholder of one company may not induce other stockholders of the same company to purchase stock in another company if he so desires. The fact that the defendants were engaged in selling treasury stock for legitimate corporate purposes did not preclude plaintiff's right to induce defendants' stockholders to purchase stock from him, even if it did indirectly affect the defendant company. The plaintiff, at most, was only a stockholder. He was not a director and held no position of trust towards the defendant company or the stockholders thereof. As we read the paragraphs referred to, there is no act of misconduct properly charged against the plaintiff. It is true that defendants repeatedly allege that certain acts were unlawful, but no specific facts are alleged in support of their conclusion. The same is true as to the term "blackmail" and "blackmailing" appearing promiscuously throughout the pleading. No facts are stated in support of the conclusion. If the court had stricken all the paragraphs referred to in the motion to strike, We are not inclined to give this language further effect than is warranted by the facts in that case. In that case the facts did not justify a denial of the right, and therefore the conclusion reached by the court was correct. But that there may be conditions and circumstances which would justify the corporation in refusing to permit an inspection is clearly recognized in Clawson v. Clayton et al. supra, and by practically all of the authorities cited by defendants. Weihenmayer v. Bitner, 88 Md. 325, 42 Atl. 245, 45 L. R. A. 446; People v. Chicago City Ry. Co., 183 Ill. App. 283; Knox v. Coburn, 117 Me. 409, 104 Atl. 789; Withington v. Bradley, 111 Me. 384, 89 Atl. 201; Stone v. Kellogg, 165 Ill. 192, 46 N. E. 222, 56 Am. St. Rep. 240; State v. Doe Run Lead Co. (Mo. App.) 178 S. W. 298; State v. German Mutual Life Ins. Co., 169 Mo. App. 354, 152 S. W. 618. cases A careful consideration of these quite clearly indicates the conditions and circumstances under which the right of inspection may be denied. They also conclusively demonstrate that defendants' answer in the case at bar, as far as plaintiff's alleged unlawful conduct is concerned, does not state facts sufficient to constitute a defense to plaintiff's action. For the reason stated, the judgment is reversed, and the cause remanded to the trial court, with directions to permit the parties to amend their pleadings, if they desire, and take such further steps as may be in accordance with law. Appellants to recover costs. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur. Where a bill of exceptions was allowed and settled on defendants' initiative, without giving plaintiff opportunity to examine it and suggest amendments, as required by Comp. Laws 1917, § 6969, and such right was not waived, the Supreme Court cannot consider it against the objections of the plaintiff, and a motion to strike the bill must be sustained. 2. Appeal and error 639(1), 766- Cause need not be dismissed for violation of rules as to briefs and abstract not prejudicing opponent. tled, as provided by our statute (Comp. Laws 1917, § 6969); and (2) that no notice of its presentation to the district judge for settlement was given as required by the same statute. We have carefully examined the bill of exceptions, and can discover no evidence from which we, or any one else, could say that the bill as proposed by defendants was ever served on plaintiff or on her counsel at any time, as required by the aforesaid statute, nor is there any evidence that service thereof was waived. In settling a proposed bill of exceptions it is important that the provisions of the statute be at least substantially complied with. The provision of the statute that the party who proposes to settle a bill of exceptions must, before doing so, serve his proposed bill on his adversary, or his counsel, so that amendWhere noncompliance of appealing defend-ments, if any are desired, may be proposed ants with court rules in presenting and filing the abstracts, briefs, etc., have in no way prejudiced plaintiff's rights, and do not affect the Supreme Court's jurisdiction, a motion to dismiss the appeal therefor may be denied. 3. Appeal and error 555-Where bill of ex ceptions is stricken, and the pleadings, findings, and conclusions support judgment, it should be affirmed. Where a bill of exceptions has been stricken, only the pleadings, findings of facts, and conclusions of law may be considered, and where they support the judgment it must be affirmed. Appeal from District Court, Salt Lake County; P. C. Evans, Judge. Action by Agnes M. Merrill against Charles Eugene Coon and wife. Judgment for plaintiff, and defendants appeal. Affirmed. before it is presented to the judge who tried the case for allowance and settlement, is a very important provision, and, unless waived by the adverse party or his counsel, must be complied with. Every party to an action who may be adversely affected by the appeal must be given the opportunity, as provided by our statute, to propose any amendments to the proposed bill of exceptions before it is allowed and settled and finally made a part of the record on appeal. A bill of exceptions which is allowed and settled on the initiative of one party, and without giving his adversary an opportunity to examine it and to suggest amendments, when such right is not waived, cannot be considered by this court against the objections and protest of such ad versary. So far as the record discloses in this case, no such opportunity was given plaintiff, nor her counsel; hence the motion H. J. Fitzgerald and C. E. Norton, both of to strike the bill of exceptions upon the first Salt Lake City, for appellants. ground must be sustained. In view of that B. Clegg and Ben Johnson, both of Salt conclusion, it is not necessary to pass upon Lake City, for respondent. the second ground of the motion. [2] A motion is also interposed to dismiss FRICK, J. The plaintiff commenced this the appeal upon the ground that the defendaction to quiet title to a small strip of ground ants have not complied with the rules of this which is specifically described in her com-court in preparing and filing abstracts, briefs, plaint. The complaint is in the usual form etc. While it is true that the rules of this in such actions. Defendants in their answer court have been violated in several particudenied the allegations of the complaint, and, lars at least, yet, in view that those violations in a counterclaim, set up title to the strip in have in no way prejudiced the rights of the themselves, and asked that the title be quiet-plaintiff and do not affect the jurisdiction of ed in them. The case was tried to the court without a jury. All the issues were found in favor of plaintiff, and a judgment entered quieting the title to the strip of ground in her, and enjoining defendants from interfering therewith, and denying all of defendants' claims to said strip of ground. Defendants appeal from the judgment. [1] The plaintiff interposed a motion to strike the bill of exceptions for the reasons: (1) That it was not served on plaintiff, nor on her attorneys, before it was allowed and set this court, we feel constrained to deny the motion to dismiss the appeal. [3] In proceeding to a consideration of the appeal, it is obvious that in view that the bill of exceptions has been stricken there is nothing before us, except the pleadings, the findings of fact, the conclusions of law, and the judgment appealed from. The only question, therefore, that we can review, is: Do the pleadings, findings of fact, and conclusions of law support the judgment? In our opinion the judgment is clearly supported by the (198 P.) pleadings, findings of fact, and conclusions | 6. Pleading 214(2)—Demurrer admits averof law. In view of that, the judgment should be, and it accordingly is, affirmed, with costs. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur. (57 Utah, 234) ments well pleaded. A demurrer admits the truth of all averments well pleaded. Appeal from District Court, Sevier County; J. D. Call, Judge. Action by W. D. Fitzgerald, doing business under the name Sevier Real Estate Agency, against Margaret Boyle and another. From a judgment of dismissal, plaintiff appeals. Re FITZGERALD v. BOYLE et al. (No. 3479.) versed and remanded. (Supreme Court of Utah. Nov. 29, 1920.) I. Vendor and purchaser 18(1)—On acceptance, option not based on consideration becomes binding. Though an option was supported by no consideration and had no efficacy greater than a continuing offer, which might be withdrawn at any time before acceptance, it becomes binding upon acceptance prior to withdrawal. 2. Vendor and purchaser 170-Tender of first installment payment sufficient without provision for security. A contract for the purchase of lands, payment to be made in installments, though making no provision for securing deferred installments, is enforceable where there was nothing to show that the purchaser was not entirely responsible and there was nothing to indicate it was inequitable, so that a tender of merely the first installment payment is not insufficient because not accompanied by such security. 3. Brokers 65(5)—Contract held to authorize broker to either sell or purchase himself. A contract, giving plaintiff, a broker, an option to purchase lands on deferred payments, a stipulated commission to be paid, held, in view of the provisions as to finding purchaser, to give plaintiff the right either to sell the property as a broker or purchase the same himself. 4. Brokers 65(5)—Broker may purchase for himself from owner, where owner knows the facts. Agreement by a broker with an owner, giv ing the broker the right to sell on commission, and also giving him the right to purchase the property for himself, was not within the rule forbidding a broker buying from or selling to an employer, as the owner, by voluntarily signing the contract, must know that it provides for the broker's purchase for himself.1 5. Brokers 65(5) — Broker authorized to purchase himself is entitled to commission in that event. Where a contract gave a broker an option to purchase himself or to find a purchaser, he is, on purchasing property himself, entitled to deduct the agreed commission, just as if he had negotiated a sale to third person. 1 Burt v. Stringfellow, 45 Utah, 207, 143 Pac. 234; Neighbor v. Realty Assoc., 40 Utah, 619, 124 Pac. 523. N. J. Bates, of Richfield, and Dey, Hoppaugh & Mark, of Salt Lake City, for appellant. J. H. Erickson, of Richfield, for respondents. WEBER, J. Defendants' general demurrer to plaintiff's complaint having been sustained, and plaintiff not desiring to amend, this action was dismissed. Plaintiff appeals from the judgment of dismissal. The only question is whether the facts stated in the complaint are sufficient to constitute a cause of action. The allegations of the complaint are, in substance: That plaintiff is engaged in the business of buying and selling real estate in Richfield, Utah, under the name of Sevier Real Estate Agency. That defendants at all times mentioned were the owners of certain premises in Richfield, Utah. That on August 9, 1918, defendants made and delivered to plaintiff an agreement in writing for the sale of said lands, as follows: "Know all men by these presents, that Margaret Boyle of Richfield, Sevier county, state of Utah, the first party, in consideration of the undertaking on the part of the Sevier Real Estate Agency, the second party, to find a customer to purchase herein described prop erty. "The first party hereby gives and grants unto the second party or its assigns, the sole option and right to purchase, at any time during one year from date, the described premises for the purchase price of three thousand and no/100 dollars; terms, $60.00 monthly until fully paid with 8 per cent. interest per annum on deferred payments to be paid to the first party at the office of the second party, Richfield, Utah, upon the exercise of this option. "The first party agrees to deliver to the second party a certified abstract of title showing title in fee simple, together with a good and sufficient deed conveying the title in fee to the second party or its assigns, at any time it is requested, before this option or term shall expire. "The first party agrees to pay second party 7 per cent. of the sale price as commission at the time a sale is consummated. "The term 'customer' as used herein is interpreted to mean any one whom the second party shall have interested, either directly or indirectly. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "The first party agrees that this option shall not terminate until the expiration of ten days' written notice to the second party, or its assigns. "Description of Property. "One-half of one full lot, together with improvements (two houses) and all appurtenances thereon located on the S. W. corner of the intersection of Third, East and First South streets, Richfield, Utah, being 1074 feet by 214 feet. "Water right, City irrigation." [2] It is argued by counsel for defendants that because the complaint contains no allegation that an offer to secure the deferred payments was made at the time the $60 was tendered and a deed demanded, a sufficient tender is not pleaded. The complaint pleads notification to defendants of plaintiff's election to accept the offer or exercise his option, tender of the first payment of $60, demand for a deed conveying the premises described in the agreement, and the refusal by defendants to accept the money so tendered and refusal to execute and deliver any The complaint further alleges that under deed to the premises. It is not alleged in the the terms of said agreement plaintiff became complaint that security for the deferred paybound upon the exercise of his option to pay ments was tendered prior to the time the to defendants the sum of $2,790.00, in month- complaint was filed in court. The purchase ly installments of $60, together with 8 per price is $3,000, payable in monthly installcent. interest on deferred payments; that ments of $60 per month until fully paid, with thereafter, on or about the 31st day of July, 8 per cent. interest per annum on deferred 1919, plaintiff duly exercised his option to payments. No security is mentioned in the purchase said premises; that he so notified contract, and none seems to have been condefendants and tendered them the first in- templated by the parties when the written ofstallment of $60, and demanded that defend- fer was executed and delivered. Defendants ants execute and deliver to him a deed con- may have had such faith in plaintiff's integveying the title in fee to him, but that de- rity and in his ability to pay that they de fendants then and there and ever since have sired no security, and if defendants intenrefused to accept the money so tendered and tionally entered into such a contract it is not refused, and ever since have refused to ex- for courts to change their contract nor to reecute and deliver to plaintiff a deed for the fuse enforcement unless it be unfair or inpremises; that plaintiff is, and at all times equitable. It cannot be said from the conmentioned has been ready, able, and willing tract itself that it is unfair in its terms. to perform said agreement and now comes One can readily perceive how plaintiff may into court and offers to pay to defendants all have such high standing in the community the moneys due them under the terms of said that those dealing with him would be satiscontract and to secure to the defendants un-fied with his simple word of honor, and that der the contract the payment of the install- they might prefer that to a bond or other sements to become due hereafter; that by rea-curity. If the contract is not fair and equison of the refusal of defendants to convey table under the facts and circumstances sursaid premises plaintiff has been damaged in the sum of $500. rounding the transaction, that is an issue raisable by answer, and not one that can in the present case be determined by a general demurrer to the complaint. [3] In support of the demurrer it is fur "the agreement, if anything at all, is only a contract for the employment of a broker upon commission, and is not an option to purchase, and that a broker who sells property for anestate for another, cannot, under such a conother, or to find a customer to purchase real tract, become the purchaser himself." [1] The first objection to the complaint is that no consideration passed from plaintiff to defendants in payment of the purported option. The written agreement was without ther contended thatconsideration, and no obligation was imposed upon the signers unless before withdrawal by them it was accepted by plaintiff according to its terms. Not being supported by a consideration, the option had no greater efficacy than a continuing offer. 6 R. C. L. P. 603, par. 25. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation on either party. The one may decline to accept or the other may withdraw his offer, but when the offer is accepted according to its terms, it becomes a binding contract. When the plaintiff notified defendants of his election to exercise his option and tendered the first installment of the purchase price under the terms of the contract, and demanded that defendants comply with their agreement, what had before been a mere offer in writing became a contract binding upon both parties [4] Taking the contract as a whole and giving effect to all of its provisions, we are unable to avoid the conclusion that the intention of the parties clearly was to give plaintiff a right to sell on commission, and also, at the same time, to give him the right to purchase for himself. If such was not the intention, why say, “In consideration of the undertaking on the part of the Sevier Real Estate Agency to find a customer," and why say, "The first party hereby gives and |