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Show IN THE SUPREME COURT OF THE STATE OF UTAH Willi L. Jacobion, Plaintiff and Respondent, v. Town of West Jordan, Inc., et al., Defendant and Appellant. No. 9472 (Filed Mar. 19, 1962 CALLISTER, Ju.tice: Plaintiff, in hi capacity a a taxpayer, tax-payer, brought t K is action for an accounting against the Town of West Jordan and the individual defendants. de-fendants. From an adverse judgment, judg-ment, the defendant appeal and plaintiff cross-appeals. ' For several years prior to April 24, 1956, the Town of West Jordan had conducted and promoted athletic ath-letic events, particularly prize fights, in its park. The proceeds realized from this activity were placed in a "Park Fund." On the aforementioned date the Town Board transferred the money from this fund, which amounted to $1,726.44, to The West Jordan Park Benefit Association, nonprofit non-profit corporation. On. this appeal the parties evidently concede that this transfer was illegal, and it is therefore an issue which we need not determine. Thereafter, the ' Association promoted pro-moted and conducted athletic and other events in the Town park. The Association paid the Town rent for the use of the park and, in addition, made variou improve- ment to the park. A disputed "improvement" "im-provement" was the construction of a prize fight or boxing ring and the necessary accouterments thereto. there-to. The Association became defunct in 1958 and ceased to function. The trial court found that the transfer had been made without consideration and without legal authority. au-thority. He also found, however, that the Association had expended, for the benefit of the Town, the sum of $1,611.61, which he allowed allow-ed as an offset against the amount found due from the defendants, to-wit, to-wit, $1,726.44, leaving a balance of $114.63 plus interest. Plaintiff contends that the trial court erred in permitting any offsets. off-sets. In this regard, we think the lower court wa correct. ( I ) While the transfer may have been without with-out legal authority (Which we do not have to decide), it wa made in-good in-good faith and, at moat, under a mistake of law. Defendants compllain that the trial court erred in refusing to allow as an offset the sum of $1,150.13, which was expended for the boxing facilities. It is apparent from the record that the trial judge, in so ruling, was under the misapprehension misapprehen-sion that prize fighting was illegal (2) and for that reason refused to offset this item. The fact that prize fighting was legal was brought to the court s attention upon a motion for a new trial, which he denied, indicating that he had other reasons rea-sons for this ruling. It is our opinion that the construction con-struction of the boxing facilities was in the same category a the other item allowed a offsets, and the amount expended thereon should have been included. This would then make the amount in offset in excess of the amount originally or-iginally transferred to the Association. Associ-ation. Reversed and remanded for further fur-ther proceedings in accordance with this opinion. No costs. We Concur: Lester A. Wade, Chief Justice F. Henri Henriod, Justice Roger I. McDonough, Justice J. Allan Crockett, Justice (1) Rest, of Restitution, Sec. 53. (2) 76-47-1, U.C.A. 1953, which made prize fighting illegal was repealed re-pealed by Laws of Utah 1953 (1st S. S.) Ch. 13. |