Appeal from Fifth District.

22, 80 Pac. 834, 109 Am. St. Rep. 853, cited by respondent. But we cannot see how the doctrine of fixtures becomes applicable to this case so as to prevent a recovery of the property here sought. Why should not a school district be required to return real estate as readily as personal property which it had acquired under circumstances such as are shown' by the facts in this case? If the contract were void because against public policy, such as a gambling contract, or was part of a fraudulent conspiracy between the parties to defraud others, the courts might refuse to aid either party, either by way of compelling performance, or the return of benefits; but even then we can see no difference as between personal property and real estate. Neither can we see that it makes any difference in this case whether the property has retained its character as personal property, or has, by being affixed to the freehold, become real estate. If it had become so affixed to the building, as it is admitted that some portions of it are, that its removal would cause material injury to the structure of the building itself, then it would seem to us that a recovery could not be had, not for the reason that the property had become a "fixture" in the ordinary meaning of that term, but for the reason that to permit its removal would work injustice upon the owner of the property to which it had been so affixed.

This controversy is between the parties to the transactions (or their successors in interest) by which the property claimed by the plaintiff was affixed to that of the defendant, and no third party's claims or rights have intervened so as to involve a question of fixtures as understood in the law. See 19 Cyc. 1048; also Snouffer & Ford v. City of Tipton, 161 Iowa, 223, 142 N. W. 97, L. R. A. 1915B, 173, wherein this language is found:

"Some confusion has arisen over the meaning of this term 'fixture.' As a rule, the question only arises where the party making the annexation is claiming the right to remove property which he had annexed to a freehold against a stranger to the original contract. In other words, the doctrine of fixtures applies, as a rule, to chattels annexed to a freehold in actions between vendor and vendee of the real estate, landlord and tenant, mortgagor and mort

Moe v. Millard County School Dist., 54 Utah 144.

gagee, the seller of the fixture and a purchaser, mortgagee or creditor of the freehold. As a rule the owner of land and the seller of personal property make any agreement they choose regarding personal property to be annexed or attached to the land. [Citing cases.] A different question arises when rights of third parties intervene, and the subject of fixtures then becomes of great importance."

There are a number of cases where bridges have been constructed on public highways under contracts with public officials which were ultra vires, and therefore void, and in that class of cases the courts have permitted the removal of the material used in their construction as the only remedy available to the party furnishing the same. Clearly in such cases the material would be as firmly attached to the freehold, and the inconvenience to the public as great as in the case at bar; the latter being also urged by the respondent as a reason why the removal of the property should not be permitted in this case. See Floyd County v. Owego Bridge Co., 143 Ky. 693, 137 S. W. 237; Salt Creek Tp. v. King Iron Bridge & Mfg. Co., 51 Kan. 520, 33 Pac. 303.

In the case at bar, the evidence shows that the greater part of the property sought to be recovered may be removed by merely taking out screws by which it is fastened to the building and uncoupling joints by which it is attached together, and, as to the sectional boiler, by dividing it into sections so as to permit of its being removed through the doors the same as it was brought in, and without any permanent injury to the structure of the building itself. The effect of such removal would be merely to leave the building incomplete the same as it would have been without the installation of the materials under the void contracts, and there is nothing to prevent the defendant school district from now taking such steps as are necessary to replace the same with similar materials and appliances obtained elsewhere, nor, indeed, from entering into a valid contract with the plaintiff for the purchase of the material as presently installed. It might require a vote of the taxpayers to authorize such purchase if the school district is without sufficient current funds, but it is scarcely conceivable that the taxpayers would not prefer to

Appeal from Fifth District.

do that rather than either to have an incomplete and unsuitable school building or to retain the benefit of property to which they have no equitable or just right.

We do not wish to be understood as holding that under any circumstances should the defendant be compelled to pay under the terms of the void contracts, nor the plaintiff permitted to profit thereby.

However, to deny removal of this property, which is clearly subject to identification, easily removable without material injury to the structure of the building, not subject to any liens, when it is conceded that the plaintiff has no other remedy, would clearly be a subversion of the purpose for which the constitutional and statutory provisions in question were framed and would permit the taxpayers of the defendant school district improperly, because unnecessarily, to shift the burden of the education of the children of the district to the shoulders of those who in good faith have furnished the material for the completion of the school building, to the extent of the value of this property, which we think they would not desire, nor should they be permitted to do. See Bardwell v. Southern Engine & Boiler Works, 130 Ky. 222, 113 S. W. 97, and annotation to same in 20 L. R. A. (N. S.) 110.

If the material furnished had been supplies which had been used or had been property which had become mingled with other property as to be not subject to identification, or have been so affixed as to be irremovable, that result might necessarily follow, because the plaintiff would be without remedy. The chief difficulty with this case is to determine just what the judgment should be in view of the fact that a part of the purchase price has been paid and in view that 2,3 some of the property which remains unpaid is not removable without injuring the building within the rule herein laid down. True, plaintiff has offered to repay that portion of the purchase price which was paid, but in doing that he demands that he be allowed or paid a reasonable amount for use of the property which has been used in the school building. We cannot perceive the necessity of refunding the money that was paid as aforesaid. To that extent the contract has

Moe v. Millard County School Dist., 54 Utah 144.

been executed, and there certainly is no good reason why in equity that matter should be reopened. Nor is it necessary to do that in order to reflect justice between the parties. If there were but one article that had been sold, or the articles were so united that they would have to be treated as an entirety, then, in order to reflect full justice, if plaintiff were given the right to remove and to repossess himself of all he had sold, he should also be required to refund what he had received. In this case, however, there are many articles, some of which can be removed while others cannot. Again, as already stated, a part of the purchase price has been paid and received, and to that extent the matter, in equity at least, should be treated as closed. The only question therefore is: To what extent shall plaintiff be permitted to remove his property? In our judgment he should only be permitted to remove so much thereof in value as has not been paid for and no more. Under the evidence as it now stands, however, we cannot say just what part of the property can be removed and what part cannot. Nor can we say what part of the property the plaintiff should be permitted to remove in order to prevent injustice. Nor can we say what, if any, sum plaintiff should receive as compensation for the use of his property, if, indeed, he is entitled to receive anything-a matter we cannot and do not consider at this time in view that the case was not tried on that theory and no opportunity has been afforded either to the court or to the parties to consider it. It may well be, however, that, as herein before suggested, the parties may now adjust that matter amicably, and may agree either on what property shall be removed or what the defendant will purchase and pay a reasonable value therefor, the value to be fixed as of the date when it was purchased. As a matter of course, if the parties agree and fix the value as of the date suggested, or if the court fixes the value as of that date, the question respecting compensation for the use of the property is entirely eliminated from the case, since the plaintiff will then be paid in full for the reasonable value of the property with legal interest.

The judgment is therefore reversed, and the cause is re

Appeal from First District.

manded to the district court of Millard county, with directions to take further testimony, if necessary, upon the questions herein suggested, and to make findings of fact, conclusions of law, and enter its judgment in accordance with the views herein expressed; in case, however, the parties cannot agree, as herein suggested, then to enter judgment permitting the plaintiff to remove so much of the property which can be removed without substantial injury to the building as may be necessary to compensate him for the unpaid purchase price with legal interest, specifying the particular articles that may be so removed and fixing their value as herein before suggested; appellant to recover costs on this appeal.

FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

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ARBON v. BLYTH.

No. 3286. Decided March 25, 1919. (179 Pac. 979.)

BREACH OF MARRIAGE PROMISE-INSTRUCTION-DAMAGES. Instruction that plaintiff should be compensated for breach of marriage contract, and, if jury found breach, they should consider damages because of failure to secure advantageous marriage, and allow for injury to feelings and affections, mental suffering, humiliation, and mortification she had undergone, being entitled to sum which would place her in as good a position as if she had been married to defendant, was proper. (Page 155.)

BREACH OF MARRIAGE PROMISE-INSTRUCTION-DAMAGES-FINANCIAL CONDITION. Instruction that, if jury found for plaintiff, in assessing damages they should consider any evidence as to defendant's financial condition as tending to show any advantage that would have accrued to plaintiff had the contract been completed, was proper. (Page 156.)

BREACH OF MARRIAGE PROMISE-EVIDENCE-WORTH OF DEFENDANT. In woman's suit for breach of marriage promise, defendant's testimony elicited by plaintiff as to worth of his realty at time of trial was not inadmissible as too remote from issue of worth at time of breach of promise, particularly where the defendant had been worth amount some years, and when cause of action arose. (Page 157.)