company vacated the property on February 28, 1900, knowing that the owner claimed the improvements, and that by failing to remove the fixtures it lost its right under the lease to remove them. The general doctrine in such case is that such fixtures or improvements should be removed before the expiration of the term of the lease. The application of this rule must depend upon the facts. In the present case the court found, and there is testimony tending to sustain such finding, that prior and subsequent to the vacation of the premises by the respondent company, on February 28, 1900, the two parties entered into negotiations, which were pending at the time of the vacation of the premises, and thereafter up to the time when this suit was commenced and the temporary restraining order was granted against the removal of the improvements; that such negotiations were entered into in good faith by the defendant company for the purpose of reaching an agreement either as to a purchase by the appellant of such improvements, or a rental of the same, and the payment to the defendant company of a proportion of the rent obtained from the same; that on and prior to the day when the premises were vacated, and during such negotiations, up to the time when said suit was commenced, the appellant requested the defendant company not to remove the said improvements until they could reach an understanding for a sale or rental of the same then pending; that the defendant company complied with said request, with the intent and purpose of making an agreement for the purchase or rental of the premises, and was awaiting the termination of such negotiations, when the same were suddenly broken off by the appellant, and the injunction proceedings commenced restraining the respondent company from making such removal. In Ewell, Fixt. p. 141, it is said that, in cases. where the tenant is wrongfully prevented by the acts of the landlord from removing fixtures before the expiration of his lease, the above rule as to removal before the expiration of the term does not apply, and the tenant has a reasonable time after the removal of the disability in which to remove his fixtures, although the term may have expired and he be out of possession. In Podlech v. Phelan, 13 Utah, 333, 44 Pac. 838, this court held that the wrongful and threatening conduct and acts of the landlord in refusing to allow a tenant to remove fixtures on the day his term expired was a sufficient excuse for his failure to remove them before the expiration of his lease. In Chalifoux v. Potter, 113 Ala. 215, 21 South. 322, it was held that a delay for a reasonable time in removing fixtures until after the termination of the lease, during which time negotiations were pending between the parties as to the sale of the fixtures, did not deprive the tenant of his right of action therefor. Bruce v. Welch, 52 Hun, 524, 5 N. Y. Supp. 668; Mason v. Fenn, 13 Ill. 525; Bircher v. Parker, 43 Mo. 443; Bruce v. Welch (Sup.) 5 N. Y. Supp. 668; McCracken v. Hall, 7 Ind. 30. Under the findings of the trial court, the respondent company was prevented from removing the fixtures during the term of the lease by the acts and conduct of the appellant. After the appellant had induced the respondent to forego the removal of the fixtures during the term, it would be unjust to allow her to obtain by her own wrongful conduct an undue advantage over the respondent, and deprive it of the right to take the property it had constructed on the premises with permission to remove it. 3. It is also claimed that it was error, un der the circumstances, to grant a specific performance of the contract, even if the respondent company had a right to remove the property. We do not concur in tuis view. The enforcement of a specific performance of a contract is discretionary with the court, and such performance will be decreed unless it affirmatively appears that great hardship and injustice will be done to one party without considerable benefit to the other, or in cases where the public interests would be prejudiced thereby. Conger v. Railroad Co., 120 N. Y. 29, 23 N. E. 983. But the nature of the relief sought, and the rights of the respondent under the contract, do not necessarily imply that a specific performance is asked or was granted. The respondent simply asks to take away certain personal property it placed upon the land, which belonged to it originally, and which appellant agreed it should remove for the consideration named in the contract. It was competent for the respondent to seek a recovery of the property in the action brought against it by the appellant to quiet title to the improvements. 4. In its case on rebuttal, the appellant sought to show the value of the improvements placed upon the property by the respondent on the 28th day of February, 1898, as old lumber and brick, for the purpose of removal from the ground. Under objection, the evidence was rejected as being irrelevant, incompetent, and immaterial. The respondent constructed these improvements at a cost of about $3,700, with the conceded right to remove them. It offered to sell them to the appellant for $1,000. As we have seen, the appellant procured delay in the removal of the improvements, and finally commenced this action to quiet title, and obtained a temporary restraining order to prevent the removal of the same. The respondent in its answer claims the ownership and right to take and remove the personal property. The question of its value was not raised by the pleadings. As said in Seibel v. Siemon, 72 Mo. 532: "The refusal of a landlord to permit his tenant to remove erections made by the latter, under an agreement that he might do so, would smack of fraud and oppression." In such a case the wrongdoer, after having converted the property, should not be permitted to dictate in what manner he shall be made accountable for the wrong done. The appellant having converted personal property belonging to the respondent, the latter had a right to demand its restoration. We find no error in the ruling, as it is presented in the record; nor do we find any reversible error in the record that will justify a reversal or anything more than a modification of the judgment as to leaving the buildings in the condition they were when the improvements were made. The judgment and decree of the district court is affirmed, with costs, with the modification that such improvements so placed upon the property and attached to the adobe building of the appellant may be removed by the respondent within a reasonable time, but without material injury or damage to the building to which it is attached; and the respondent is also required to place the premises and adobe building in the condition they were in at the time such improvements were made, reasonable wear and tear and damages by the elements excepted. BASKIN and BARTCH, JJ., concur. (23 Utah, 606) HALL v. McNALLY et al. (Supreme Court of Utah. June 26, 1901.) PAROL EVIDENCE-VARYING WRITTEN AGREE. MENT-ADMISSIBILITY-JUDGMENT- 1. Where several parties contract in writing for the sale of realty for an expressed consideration, parol evidence of an agreement by some of such parties to allow the grantee a certain sum on account of commissions may be admitted over objection that it varies the written agreement. 2. Under an option contract for the conveyance of realty, a deed was placed in escrow to be delivered on payment. The deed was delivered to the grantee, but part of the consideration was retained by the depositary because of a dispute as to its ownership, whereupon the grantors sued the grantee to annul the deed. The court found the deed properly delivered, and dismissed the complaint. Subsequently the depositary, by bill of interpleader, sought to determine the ownership of the fund retained by him. Held, that the grantee's answer in such former suit did not estop him from asserting claim to such fund retained under an agreement with the grantors, since the only - question involved in the former suit was whether the deed was properly delivered. 3. In a suit to determine the ownership of a part of the consideration for the conveyance of realty, which was claimed as commissions by the grantee, the question of grantee's right to commissions for procuring the sale, not having been urged in the trial court, cannot be raised on appeal. Baskin, J., dissenting. Appeal from district court, Salt Lake county; A. N. Cherry, Judge. Bill of interpleader by William C. Hall against John McNally and others to determine the ownership of certain money in his possession, and claimed by defendants. From a judgment settling ownership and or dering payment, defendants McNally and another appeal. Affirmed. Rawlins, Thurman, Hurd & Wedgwood, for appellants. Pierce, Critchlow & Barrette and Farnsworth & Lund, for respondent. MINER, C. J. It substantially appears from the record that on the 21st day of February, 1900, plaintiff, Hall, had $1,000 in his hands, which respondent Farnsworth claimed. Appellants, McNally and Harrington, denied Farnsworth's right thereto, and themselves claimed the money. Plaintiff, Hall, not wishing to take the risk of paying the money to either party, filed this bill of interpleader against all the defendants. It further appears, in substance, that on May 4, 1899, McNally, Harrington and wife, and McDonald and wife, entered into an option contract in writing to sell the Antelope group of mines to Farnsworth. Each of the three contractors owned an undivided one-third interest in the mines. The consideration expressed was $30,000, and was to be paid in three payments. The last payment of $15,000 was to be made within six months. The option contract was placed in the hands of Hall, the plaintiff, and also a deed placed in escrow, to be delivered on payment of the money. A question arose between the parties as to the payment of commission. It is claimed by Farnsworth that an oral agreement was made between himself and McNally and Harrington whereby they agreed that Hall should deduct out of their share of the $15,000 the sum of $2,000 commission for the sale of the property, rather than have the sale go under; that McDonald was not a party to such agreement, and refused to pay his proportion of the commission. One thousand dollars of this commission was to be paid to John Free, and $1,000 to Farnsworth. Free afterwards waived his claim. McNally and Harrington notified Hall not to deliver the deed until the full amount of $15,000 was paid. When due, Farnsworth tendered Hall $14,000, claiming no more was due. Hall refused to deliver the deed unless the full sum was paid. Thereupon Farnsworth paid the whole amount to Hall. The appellants dispute the right as to the payment of the commission, and the testimony on that subject is in conflict. On full payment of the $15,000, Hall delivered the deed to Farnsworth, who recorded it, and thereupon paid McNally and Harrington the amount due them, less the $1,000, which was retained by him until a right to the same had been determined. Harrington and McNally thereupon brought suit No. 2,856 against Farnsworth to annul the deed, claiming that Hall had no right to deliver the same until they were paid the full balance of the $15,000. Farnsworth answered, claiming he had paid the full sum due on the option contract to Hall. The court found the deed was properly delivered, and dismissed the complaint. McNally and Harrington thereupon demanded payment of the balance of $1,000 from Hall, and this suit was instituted by Hall to determine who was entitled to the money. After hearing the proof, the court found that Farnsworth was entitled to the money, and ordered its payment accordingly. From this judgment McNally and Harrington appeal. 1. Appellants claim that the court erred in receiving parol testimony tending to show the agreement between Farnsworth on the one part and McNally and Harrington on the other to allow the former $1,000 on account of commission, on the ground that the original contract was in writing, free from ambiguity, and parol evidence was inadmissible to vary the terms thereof. The general doctrine, as frequently announced by this court, doubtless is that, in the absence of fraud, mistake, or ambiguity, parol evidence is not admissible to vary or explain the terms of a written instrument. Moyle v. Society, 16 Utah, 69, 50 Pac. 806; Bank v. Foote, 12 Utah,, 156, 42 Pac. 205; Haskins v. Dern, 19 Utah, 89, 56 Pac. 953. The respondent admits this rule to be correct, but says he does not seek to vary its terms, or to claim under the written agreement; that he claims under an independent contract, whereby McNally and Harrington agreed to allow him $1,000 out of their share of the last payment of $15,000, and that, therefore, the principle above announced is inapplicable to the facts herein; that the contract sued upon is not the original contract for the sale of the property, but an independent contract between McNally and Harrington on the one part and Farnsworth on the other, and that they are different and other parties than those who signed the original contract, one of the parties to the original contract not being a party to this agreement. It is also claimed that the consideration named is not part of the contract, and that such consideration may be explained or varied. We are of the opinion that the evidence was properly admitted. The testimony introduced did not go to the promise itself, but to the consideration of the promise; and it did not relate to the promise made by all the parties to the written contract, but to an independent promise and consideration, agreed upon by only two of the several parties to the option contract with the respondent, as to the manner of paying the consideration. Parol evidence is admissible to show what the parties agreed might be done with the consideration, and in what manner the consideration named in a deed is to be paid, but not to change the contract itself. Becker v. Knudson, 86 Wis. 14, 56 N. W. 192. If Farnsworth's testimony tends to change the contract itself, it should be rejected. 2 Jones, Ev. § 475. Formerly it was held, although there was much conflict in the opinions, that the clause stating the consideration in a deed or other instrument under seal must be held conclusive on the parties like other parts of the instrument, and was not open to contradiction or explanation; but more modern decisions settle the rule that, although the consideration expressed in a deed is prima facie the sum to be paid, it may still be shown by the parties that the real consideration is different from that expressed in the written instrument. As said in Goodspeed v. Fuller, 46 Me. 147, 71 Am. Dec. 572: "The only effect of the consideration clause in a deed is to estop the grantor from alleging that it was executed without consideration, and to prevent a resulting trust in the grantor. For every other purpose it may be varied or explained by parol proof." Wilkinson v. Scott, 17 Mass. 249; Clapp v. Tirrell, 20 Pick. 247; Thayer v. Viles, 23 Vt. 494; White v. Miller, 22 Vt. 380; Bowen v. Bell, 20 Johns. 338, 11 Am. Dec. 286; 2 Jones, Ev. § 476; Velten v. Carmack (Or.) 31 Pac. 658, 20 L. R. A. 101; Cardinal v. Hadley, 158 Mass. 352, 33 N. E. 575. In Becker v. Knudson, 86 Wis. 14, 56 N. W. 192, it was held that parol evidence is admissible to show in what manner the consideration named in a deed is to be paid. Schillinger v. McCann, 6 Me. 364; 2 Jones, Ev. § 476; Velten v. Carmack (Or.) 31 Pac. 658, 20 L. R. A. 101, and cases cited. In Burbank v. Gould, 15 Me. 118, it was held that the acknowledgment of payment of the consideration money in a deed of land does not preclude the grantor from showing by parol testimony that a part of the money was left in the hands of the grantee, to be paid by him to a third person, for the benefit of the grantor. 2. The appellants also contend that by reason of the proceedings and decree in Harrington and McNally against Farnsworth (No. 2,856), wherein Farnsworth answered, and the court found that he had paid Hall the full amount of the money due on the contract, the latter is estopped and precluded from claiming said $1,000 in this action, and the rights of Harrington and McNally to said money are now res adjudicata, as well as the fact that the money was paid to and held by Hall for them. It is no doubt true, as held in Davis v. Wakelee, 156 U. S. 689, 15 Sup. Ct. 555, 39 L. Ed. 578: "It may be laid down as a general proposition, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him." But, we do not find the facts, as shown by the record in case No. 2.856, such as will bring the case under that rule. The purpose of that action was to set aside and cancel the deed executed by the mine owners to Farnsworth, and left with Hall in escrow, to be delivered to Farnsworth on the payment by him of the full consideration remaining unpaid. The court found, after a full hear ing, that the plaintiffs had no right or title to the property named in the complaint, that Farnsworth was the owner of it, and that it was properly delivered by Hall to him. The real question in litigation was whether the deed was properly delivered to Farnsworth on payment by him to Hall. Hall had required Farnsworth to pay into his hands the full amount of $15,000 owing and unpaid on the contract, out of which Farnsworth claimed his commission, before he would deliver to him the deed. The commission was only to be paid out of the last payment of $15,000. It was not necessarily to be deducted until the $15,000 was paid; nor had Farnsworth the right to deduct it or segregate it. The contract of sale was an entirety. $15,000 was due to three persons,-$5,000 to each, -one of whom was not interested in the commission. When the amount was paid to Hall, the provisions of the contract were complied with and satisfied as between all the parties to it. Until the $15,000 was paid, the conditions of the contract were not complied with; but, as between McNally and Harrington, who had $10,000 interest in the last payment, and Farnsworth, something else remained to be done. It was the payment by Hall to Farnsworth of the $1,000 agreed to be paid him by McNally and Harrington out of their share of the payment. Hall paid it, as the court found he had a right to do under the facts found. Under such a state of facts, Farnsworth could properly allege in his answer that the full sum named in the contract had been paid to Hall. He could not obtain the deed, or perform his part of the contract, until the full sum was paid into Hall's hands. It was left for Hall, who held the escrow, to make the division, and pay over the money, as agreed, rather than to Farnsworth. Neither in the court below, nor in this court on appeal, was any question made by either party that, because Farnsworth was named as grantee in the contract for the sale of the mines, he was not entitled to a commission for procuring said sale. Whether he was not acting for others does not clearly appear. In any event, this is not a jurisdictional question, and therefore should not be raised by this court, on its own motion, when the parties herein have failed to raise it in either court, and content themselves by relying upon the issues raised in the record. If the appellants agreed to pay the commission, they are not in a position to revoke their agreement while accepting the benefits arising under it. Under the facts we see nothing inconsistent in the position taken by Farnsworth; neither do we find the agreement void under the statute of frauds. The testimony was conflicting and contradictory. Counsel for the appellants do not, in their brief, rely upon or discuss the errors assigned that there is no evidence to sustain the findings or decree, and we have, therefore, taken the facts as found by the trial court to be correct. The writer of this opinion wishes to express his appreciation for the able manner in which the case has been argued and submitted by counsel in their respective briefs. The judgment of the district court is affirmed, with costs. BARTCH, J., concurs. BASKIN, J. (dissenting). It appears from the record that Philo T. Farnsworth was the purchaser of the mining property described in the deed placed in escrow with the plaintiff, and that said deed in terms conveyed said mining property to him. In his answer he alleged that the "deed was to be held by the plaintiff, W. C. Hall, and delivered to him on the 4th day of November, 1899, upon the complete and final payment of the purchase price of said property." Until the final payment was made, he was not, by the terms of the written contract, subject to which the plaintiff held the deed, entitled to have the same delivered to him. He made the payments provided for in said written contract, and when made, and the deed was delivered, it is clear that the grantors became the owners of all of the money so paid to the plaintiffs, if proof of the contemporaneous verbal agreement between Farnsworth and McNally and Harrington was inadmissible. Farnsworth admits, as shown by the quotation of his answer, hereinbefore made, that under the written contract he was to pay to the holder of the deed in escrow the full purchase price of the property. The contemporaneous verbal agreement varies the written contract in that respect, and therefore it was error to admit evidence in proof of it. Again, as Farnsworth was the purchaser and grantee of the property, the allowance of a commission is an anomaly. "The term 'commission' legally imports a sum allowed as compensation to a servant, factor, or agent who manages the affairs of others in recompense for his services." 6 Am. & Eng. Enc. Law (2d Ed.) 228; Bouv. Law Dict. 361. fendant to secure a loan, but did not make oath that they were officers of the corporation, or that they executed the instrument by authority of the board of directors. Held, that the deed was good as against a trustee in bankruptcy of the corporate estate. 2. Where a deed executed by the officers of a corporation was delivered as security for a loan, the fact that it had been imperfectly acknowledged did not render it inadmissible as against a trustee in bankruptcy of the corporate estate. 3. Where the directors of a corporation borrowed money of defendant, and executed a deed as security, the fact that the corporation kept no record of their meetings constituted no ground for annulling the deed at the instance of a trustee in bankruptcy of the corporation. 4. Where the directors of a corporation borrowed money of defendant, and executed a deed to secure it, but kept no record of their acts, parol evidence was admissible to show the transaction. 5. Rev. St. 1898, § 1976, provides that it shall not be necessary to use private seals on any instrument in the state. Held, that the fact that a deed executed by a private corporation did not have a seal attached did not invalidate the conveyance. 6. The directors of a corporation, at an informal meeting, decided to borrow money from defendant, and to execute a deed on the corporate real estate as security, and defendant loaned them $1,000 on September 7, 1898, and $800 on October 29, 1898. The money was used by the directors in purchasing goods and erecting new buildings, and, though defendant frequently requested a deed, it was not delivered until December 28th. Held, that the use of the borrowed money by the corporation, with a knowledge of the facts, constituted a ratification of the acts of the directors in borrowing it. 7. From the time of such ratification of the claim it constituted an equitable lien on the corporate real estate included in the deed. 8. On September 7th defendant loaned a corporation $1,000, the directors agreeing to secure it by a conveyance of realty. On October 29th a lien of $800 was made on the same terms. The corporation failed to deliver a deed, though frequently requested, until December 28th following. On the 14th of March subsequent thereto a petition in bankruptcy was filed against the corporation. Held, that the deed was not invalid as a preference, under Bankr. Act 1898, § 3, as having been made, in violation of such section, within four months of adjudication in bankruptcy. Appeal from district court, Seventh district; Jacob Johnson, Judge. Action by M. F. Murray, as trustee in bankruptcy of the Golden Rule Cash Store, against Henry Beal. From a judgment in favor of defendant, plaintiff appeals. Affirmed. The Golden Rule Cash Store of Ephraim City, Utah, was incorporated and doing business under the laws of the state of Utah in 1898. A board of directors was duly elected and qualified as such. Such board selected from their number and elected the following officers: Ivan J. Olsen, Jr., president, Neils Mortensen, Jr., vice president, and T. W. Hansen, secretary and treasurer. These persons continued to act as such officers until the concern made an assignment. No record of the proceedings of the board was kept except of the first meeting. On the 13th day of February, 1899, the corporation made an assignment, for the benefit of its creditors, to D. W. Anderson and M. F. Murray. The assignment was recorded, and the assignees took possession of the property. On the 14th day of March a petition of involuntary bankruptcy was filed against the corporation by a part of its creditors, and it was adjudged a bankrupt on the 11th day of April, 1899. The appellant, M. F. Murray, was elected trustee of such bankrupt estate, and is one of the parties named as assignees. The corporation was in need of money for the purpose of carrying on its business. In pursuance of an arrangement between themselves, and without any formal meeting be ing called, the directors met at the company's store, and discussed the propriety of borrowing money for the corporation, and it was agreed by them, without any formal resolution by them to that effect, that the president and secretary should borrow $1,000, and secure it on the real estate of the corporation on which its store building was erected. The president and secretary and treasurer thereafter saw defendant, Beal, and one Neilson. Neilson agreed to let them have the money provided Beal would become responsible for it. Thereupon, on or about the 7th of September, 1898, the corporation, by I. J. Olsen and T. W. Hansen, the president and secretary and treasurer, made an oral agreement with defendant, Beal, by which he agreed to obtain for the corporation $1,000 from Neilson, but they were to sign the note to obtain it. In consideration thereof the officers agreed to convey to Beal the real estate in question as security for the repayment of the $1,000 so obtained. At this time the title to the real estate stood on record in the name of Hansen, and had not been conveyed to the corporation owning it, as agreed. In pursuance of such arrangement, the defendant, Beal, in order to obtain said $1,000, gave his note, signed by Olsen and Hansen, for that amount to Neilson, received the money, and delivered it over to Hansen, as president of the corporation. This money was deposited in the bank to the credit of the corporation, and soon after used by it, with full knowledge of its officers, in payment of debts, and in constructing improvements on the corporate property. On the 29th day of October, 1898, the officers of the corporation borrowed from the defendant $800 for its use on like authority and security to be given as on the former loan. The $800 was thereafter received and used by the corporation. When the notes matured Beal paid the principal and interest. On the 28th day of December, 1898, Hansen conveyed the property to the corporation, and, upon the consideration and agreement aforesaid, Hansen and Olsen, as president and secretary and treasurer, conveyed to the defendant, Beal, by warranty deed, the real estate as aforesaid. The official character of the officers was recited in the deed, but the corporation did not attach its seal, nor does it appear it had one. Appellant witnessed and took the |