Mr. Presiding Justice Adams
delivered the opinion of the court.
Appellant’s counsel contend that the railroad company was lawfully in possession May 5, 1886, by virtue of the forcible detainer proceedings and the writ of restitution issued in pursuance thereof, and to sustain their position attack the decision of the Supreme Court in French v. Miller, 126 Ill. 611, adjudging that a judgment in forcible detainer, by confession, in pursuance of a power of attorney, is unwarranted by the statute, and that such confession confers no jurisdiction. It not being either within our province or in accordance with our inclination to overrule or disregard a decision of the Supreme Court, the contention is inappropriate and, necessarily, ineffective in this forum.
Appellant’s counsel further contend that appellánt was lawfully in possession May 5, 1886, by reason of its forfeiture of the lease for non-payment of rent, and its entry in accordance with the covenant of the» lease for re-entry in default of payment of rent. By the terms of the lease the rent was payable quarterly in advance, and it was provided that if the rent reserved, or any part thereof, should be behind or unpaid on the day of payment, and for ninety days thereafter, it should be lawful for the lessor to reenter, etc.
May 5, 1886, there was a balance of $100 rent overdue for the quarter ending March 31, 1886. May 1, 1886, the railway company paid the taxes for the year 1885, but the lease provides that taxes paid by the lessor “ shall be taken as so much additional and further rent, to be collected in the same manner, by distress or otherwise, as other rents falling due thereon.” Considering the taxes paid May 1, 1886, by the lessor, as rents, which must be done under the clause of the lease quoted, the appellee had until August 1, 1886, to pay them. In respect to the overdue rent, $100, the evidence is that May 4, 1886, Amberg, to whom the lease had been assigned by appellee, as security, and who, therefore, had legal right to pay the rent and taxes, notified the railway company in writing that he was ready and willing to pay all rents due under the lease, if the company would notify him of the amount due; and Amberg testified that he called on Mr. Yerkes, who was then president of the railway company, and endeavored to ascertain from him the amount of rent and taxes due, but could not; also that May 5,1886, before the railway company attempted to take possession, he again called on Mr. Yerkes, and tendered to him an amount of money, which according to his recollection, was $1,500, which Mr. Yerkes refused to receive. Counsel for appellant contend that this tender was not made till after the railway company took possession, but we think the evidence was such as to justify the chancellor in finding the contrary. As to the actual tender, Amberg’s testimony is corroborated by that of Mr. Yerkes, who testified: .
“Well, Mr. Amberg came to see me while this trouble was brewing there in the rink building, and made me a tender of some money, just how much I don’t remember, but I do remember it was not the amount due on the rent and taxes, and I simply said to him, no, I can’t take any money from you; and he went off.”
Yerkes also testified that Amberg had the money with him in bank notes. The tender was refused, not because it was insufficient to pay the balance of rent due, but because it was not sufficient, as Mr. Yerkes claimed, to pay both the rent and the taxes, which latter appellee had time, until August 1, 1886, to pay, in order to prevent a forfeiture. It is not good ground of objection to a tender that it is too much, or because it does not amount to the debt due, together with another debt, which the part)' to whom the tender is made insists on receiving at the- same'time. 1 Taylor on Land, and Ten., Sec. 393.
A tender of rent due, if refused, is as effectual to prevent a forfeiture for non-payment of rent as is actual payment. Chapman v. Kirby, 49 Ill. 211.
The subsequent conduct of Mr. Yerkes, the president of the railway company, in respect to the premises, was such as to waive a forfeiture had there been one.
The evidence shows that Amberg, who was the assignee of the lease, as security for the indebtedness of appellee to him, which indebtedness was overdue and wholly unpaid, took possession of the demised premises before the railway company made any entry whatever on the premises. The assignment being of a chattel real and by way of mortgage (Jones on Chattel Mortgages, Sec. 280), Amberg had the right to take possession. 1 Jones on Mortgages, Sec. 27. And he became accountable to appellee for the rents and profits of the premises, his duty being to exercise such care and diligence in respect to the property as a provident owner would exercise. 2 Jones on Mortgages, Secs. 1114 and 1123.
It is urged that the railway company supposed that Am-berg was the absolute owner of the lease; that it. had no knowledge or notice that he held it merely as security. The evidence, as we think, is to the contrary. George M. Irwin, president and general manager of appellee, testified that the written consent of the railway company to the assignment.of the lease by appellee to Amberg was handed to him by Mr. Crawford, then the secretary of the railway company; that Mr. Rehm, the vice-president of the railway company, and Mr. Phil brick, appellee’s secretary, were present at the time, and that he, Irwin, told Mr. Crawford that appellee owed $10,000 on construction account, and had made an arrangement with Amberg to borrow the money, and for that purpose had to offer to Amberg, in addition to appellee’s other property, an assignment of the lease. Phil-brick testified that he was present when the conversation with Crawford occurred, and that Irwin stated to Crawford that Amberg was willing to make the loan appellee required, provided the sale of beer on the premises should be permitted, and that he, Irwin, wanted to assign the lease to Amberg as collateral security.
Mr. Y. C. Turner, who was president of the railway company at the time, testified that lie signed the written consent to the assignment, but that he was not informed that the proposed assignment to Amberg was to be as a security. The following occurred in his examination in chief:
“ Q. At the time you signed that paper, or before it, were you informed, in any way, that this assignment was to be made to Mr. Amberg as security — made by him to the Le Grand Company ? A. No, sir, I was not; indeed I don’t remember that transaction, Mr. Goudy.”
The witness could, of course, identify his own signature to the assent, and this was about the only value of his testimony, in view of his frank statement that he had no recollection of the matter.
The written consent of the railway company to • the assignment indicates that an incumbrance of the leasehold was in the mind of the railway company’s officers. The concluding words of the consent are, “and no incumbrance shall be made to affect the rights of the lessor.” The language is incorrectly stated in appellant’s abstract. Irwin further testified that May 3, 1886, he told Mr. Yerkes that appellee had borrowed from Amberg $10,000, and had procured from Mr. Turner, his (Yerkes’) predecessor, written permission to assign the lease to Amberg as collateral security, and that appellee had so assigned it.
S. C. Eastman testified that he was present at the interview between Mr. Irwin and Mr. Yerkes May 3, 1886, and heard the former say to the latter that the lease had been assigned to Amberg as collateral security, with the assent of Mr. Turner, the previous president of the railway company.
Mr. Yerkes, in his first examination, testified that he didn’t think that Mr. Irwin, May 3, 1886, informed him that Amberg had an assignment of the lease, made with the consent of the railway company, as security additional to the chattel mortgage; also that he didn’t remember any conversation during which Eastman was present. On being recalled, however, he testified that he had thought over the interview inquired about, as of May 3, 1886, and remembered that Irwin and his lawyer called on him, and that he presumed it was Mr. Eastman.
Mr. Crawford merely testified that he had no recollection of being informed that. the lease was assigned as security.
The evidence fully warrants the conclusion that the Eailway Company knew that Amberg held the lease merely as security, and that his possession was that of mortgagee. May 7, 1886, Amberg filed a bill against the railway company and others, and secured an injunction against interference by the railway company with his possession of the premises, and while the bill was pending and the injunction in force, Mr. Yerkes, as he testified, consulted about the matter with Mr. Moore, his attorney, who told him that Amberg was in possession and was the man to deal with, and that he also consulted with Mr. Goudy, who told him it was all right, it was the proper thing to do, after which he bad a conversation with Amberg which he relates thus:
“ I had a talk with Mr. Amberg and I told him we were perfectly willing to have the thing run on as it rvas, only we wanted to be satisfied of our rent, and I saw by the provisions of the old lease that there could be a default for three months, and we didn’t feel like losing three months’ rent, and if he could fix up the entire arrangement by which we could close the matter up in thirty days, that we would stop all these legal proceedings and quarreling, and he could fix the lease up just as it was, except that there should be a thirty days clause in it instead of ninety days.”
Appellant’s counsel contend that there was a new lease from the railway company to Amberg. The above evidence of Mr. Yerkes is all that is in the record on which to base such claim. No new lease was signed or drafted, nor was any alteration of the lease from the railway company to appellee attempted. Amberg went into possession under .that lease and was in possession under it, as assignee, when the talk testified to by Mr. Yerkes occurred, which seems to have been a monologue, as it does not appear that Amberg said anything. He simply continued in possession under the lease which was assigned to him as security. Chargeable, as the railway company was, with knowledge of appellee’s rights in the premises, and there having been no valid forfeiture of those rights, a new lease to Amberg would have been fraudulent and void. Mr. Yerkes substantially recognized that Amberg Avas lawfully in possession under the old lease, and permitted him so to remain. It appears by appellant’s receipt to Amberg, of date May 12, 1886, that at that date a settlement had been made between him and the railway company. The receipt is for $100, balance of rent due for quarter ending March 31, 1886; $1,250 in full for quarter beginning April 1, 1886; $1,047.06 for taxes paid by the railway company on the demised premises. This receipt is significant. First, it admits the receipt of $100, the balance of rent for non-payment of which it is claimed the lease Avas forfeited; and also includes back rent for the quarter commencing April 1, 1896, although Amberg did not go into possession until May 5, 18S6, all of Avhich is inconsistent with the claim that there Avas a new lease. Secondly, the balance of $100 due on the quarter ending March 31st, plus $1,047.06, the amount paid by the railway company for the taxes of 1885, is less than $1,500, the amount tendered by Amberg to the railway company May 5, 1886. Amberg, at the time the receipt was given him, executed to the railway company a release of all claim for damages which he had or might have by reason of the company having taken possession of the demised premises by force or otherwise. We think it safe to assume that this release was suggested by the railway company and not by Amberg. May 24,1886, the railway company transferred its railway system and property to the railroad company, and subsequently the latter company, desiring to use the demised premises for a power house in connection with its street railway system, entered into negotiations with Amberg, which resulted in. the agreement of June 28, 1886, set forth at large in the statement preceding this opinion. That agreement clearly recognizes the existence, at its date, of the lease from the railway company to Irwin. It is recited in the agreement that in consideration of the sum of $17,000, Amberg has sold to appellant “ the said lease demising said premises to said Invin,” and “ has assigned all the rights, covenants and obligations of every kind in said lease mentioned and contained, * * * it being the intent of this instrument to sell to and invest in said second party the said lease and all the covenants and all the obligations of the same, and to sell and convey to the said second party the said improvements and property now in and upon said premises.”
In view of the language of the agreement and the fact that appellant paid $17,000 to Amberg in consideration of the sale and assignment to it, any other conclusion than that the agreement was made and the money paid by appellant on the hypothesis that the lease was in full force and effect, seems to us absurd. Appellant took possession of the premises under the agreement of June 28,1886, and has ever since continued in such possession. Amberg’s title being only that of assignee of the lease, by way of mortgage, he had no right to sell it at private sale, as if he were the absolute owner, and bis attempt so to do was fraudulent; and appellant, well knowing that Amberg was merely a mortgagee in possession, and not the absolute owner of the term, participated in the fraud, by taking possession of the demised premises, claiming to own them, and appropriating them to its own use for railway purposes.
We are therefore of opinion that appellant, as held by the chancellor, must be regarded as mortgagee wrongfully in possession, and chargeable as such. Russell v. Southard, 12 How. 139; Huxley v. Rice, 40 Mich. 73; Hancock v. Harper, 86 Ill. 445, 451; Incorporated Societies v. Richards, 1 Drury & Warren, 266; Rational Bank, etc., v. United Hand in Hand, etc., 4 House of Lords (App. Cases), 391; Booth v. Baltimore Steam Packet Co., 63 Md. 39.
The railroad company substantially destroyed the premises for the use for which appellee intended them, or for any general use to which they were adapted. Mr. Yerkes testified:
“ After the assignment of the lease to us by Amberg, we went on and improved the property, put in a cable station, put in foundations for engine and boilers, put up the big stack, put in the engine, the winding machinery and vaults and made different apartments in the building by partitioning them off, and generally doing the work necessary for the cable station. The engines necessary to run everything north of Illinois street are on this property. We have expended from $275,000 to $300,000 on this property.”
The decree confirmed the master’s report, finding the amount with which appellant was chargeable for the unexpired part pf the term, ending September 30, 1889, to be $20,919.20 and interest, amounting in all to $32,256.22. Counsel for appellant contend that this amount is excessive, and their argument is mainly directed to criticism of the master’s statement of the reasons for his conclusion as to the amount properly chargeable to appellant. The directions of the court, in referring the cause, were “ to take an accounting of and concerning said premises * * * and that the said master report his finding to this court with all convenient speed.” Under this order it was the duty of the master merely to report his findings. He was not required to make an argument, state reasons for his findings, or describe the mental processes by which he arrived at them, and such statement must, as it seems to us, be regarded as extra official. The question is, whether his findings are supported by the evidence. The master’s findings have been confirmed by the court, and after carefully reading and considering the evidence, we can not say that the finding as to the amount chargeable to appellant, under the original bill, is manifestly against the evidence.
We will next consider the decree in respect to the breach of the covenant to renew.
The court, by the decree of August 11, 1892, on the supplemental bill, decreed:
“ That said change of said premises and their application to the purposes aforesaid were fraudulent; that said premises can not be restored to their original state without irreparable injury to the public, nor without causing a loss to said railroad company many times in excess of the said renewal term of five years.
And it further appearing to the court that the equities of this case demand that the said complainant shall receive and that the said street railroad shall make compensation to the said complainant in money for the value of said renewal of five years, and that such value shall be ascertained before entering the final decree herein, it is further ordered, adjudged and decreed, that the said street railroad company pay to said complainant the full value in money of the said renewal term of five years, and that this cause"be referred to I. K. Boyesen, master, to ascertain said value, and that said value be ascertained by the evidence heretofore introduced in this cause, and by such other evi-x dence as complainant and the said street railroad company may introduce, and that said value be ascertained upon the assumption that the Said premises have remained in the same condition in which they were May 3, 1886.”
To determine what were to be the terms of the renewal lease, we must refer to the original lease, which contains this clause:
It is further covenanted and agreed that said party of the second part shall be entitled to a renewal of this lease for a further term of five years from October 1, 1889, at an annual rental equal to six per centum of the value of said land, exclusive of improvements thereon, to be determined by a majority of three disinterested persons, as appraisers, (one of whom shall be chosen' by said party of the first part, one by said party of the second part, and the third by the two so chosen,) payable quarterly in advance, and also all taxes and installments of the Lincoln Park assessment which may be assessed or payable during said term, and upon the same terms and conditions in other respects as are contained herein, except this renewal clause.”
We are of opinion that the renewal lease covenanted to be made, is a lease the same in all respects as the executed lease, except that it was not to contain the- above covenant for renewal, and except, also, that instead of the covenant to pay quarterly, in advance, the rent reserved by the executed lease, it was to contain a covenant to pay an annual rental amounting to six per cent of the value of the land, such value to be ascertained as stated in the covenant; such six per cent to be inserted in the renewal lease when ascertained, as the annual rental, to be paid quarterly. In other words, if the value of the land, exclusive of improvements, should be appraised at $100,000, then $6,000 should be inserted in the lease as the annual rent, to be paid quarterly, in advance. Suppose a bill to have been filed for specific performance of the renewal covenant, the court, as it seems to us, in granting the relief prayed, could not legally have decreed the execution of a lease different in terms from the original lease, except as expressed in the renewal covenant.
Counsel for appellee contend that the permission given by the railway company January 21, 1886, to assign the lease to Amberg, and to sublet the premises for a summer garden, or other purposes not calculated to injure the reputation of the property, was a waiver, as counsel express it, for all time, of the covenants against assigning or subletting. In support of this contention, counsel rely mainly on Dumfor’s case, 1 Smith’s Leading Cases, 119. It was held in that case that if the lessor of premises licensed alienation of the demised premises, the condition or covenant against alienation was determined, and that there could be no re-entry for a subsequent alienation during the term. If it be conceded that the decision in Dumfor’s case is law, we do not think it applicable to the covenant for renewal in question. The case merely decided that the condition was gone for the term. In the present case the covenant is for renewal on the terms of the executed lease, with the exceptions mentioned, and a waiver of condition during the term is not in the least inconsistent with the contract for renewal on the terms of the executed lease. The only estate which, in the present case, the appellee could assign or sublet, was the term created by the original lease, and, consequently, that estate was the only one in respect to which the license to assign or sublet could operate. The right to a renewal is not an estate. Sutherland v. Goodnow, 108 Ill. 528.
We have examined other authorities cited by counsel for appellee in support of its contention, and find that they all relate merely to licenses to assign or sublet pending the term, and therefore, for the reasons above stated, are inapplicable to the facts of the present case. The decision in Dumfor’s case has been severely criticised by Washburn in his work on Eeal Property, and his criticism has been quoted by the Supreme Court with seeming approval. Kew v. Trainor, 150 Ill. 150.
Although that decision was long adhered to in England, this was solely on account of the rule stare decisis. Eminent English judges, among them Sir James Mansfield, Chief Justice of the Common Pleas, and Lord Eldon, while following, disapprove it, and finally it was obliterated by 22 and 28 Victoria, Chap. 35, and 23 and 24 Victoria, Chap. 38. A decision regarded by the English bench and bar so unreasonable as to warrant resort to legislation to eliminate it from the body of English law, will hardly be followed in this State. r The renewal lease, then, would have contained the restrictions against assignment and subletting, against using the premises for the manufacture or sale of liquor, and against removing from or altering the buildings, or other permanent improvements on the prehiises, without the written consent of the lessor; and also the provision that any permanent improvements placed on the premises should, at the expiration of the lease, belong to the lessor.
We think it obvious from the decree of August 11, 1892, that the court, on account of the public inconvenience and the great loss which would accrue to appellant by decreeing the redemption, decided to allow the value of such renewal as of October 1, 1889, when the breach occurred. In other words, to allow such ah amount as appellee would be entitled to recover by action at law for the breach of the covenant to renew. The concluding part of the decree is as follows: ■
“ That as to the ground rent to be charged to complainant, evidence is to be taken as to the cash value of the premises, exclusive of improvements October 1, 1889, and the ground rent ascertained by computing six per cent per annum on the value so found, in addition to the taxes and assessments stipulated for in the lease.”
The measure of damages in an action at law for a breach of contract to execute a lease is “ the difference between the rent to be paid and the actual value of the premises at the time of the breach.” Green v. Williams, 4-5 Ill. 206, 208, citing numerous authorities; Cilley et al v. Hawkins, 48 Ib. 308; City of Chicago v. Huenerbein, 85 Ib. 594; Loyd v. Capps (Tex.). 29 S. W. Rep. 505.
Cilley v. Hawkins was a suit for breach of contract to lease lands. The court say :
“ In such a case the true inquiry is as to the value of the lease at the time the breach occurred. Such terms necessarily have a present market value, like other estates and interests in real estate, and the inquiry should have been, what was its true worth ? for how much could the plaintiffs in error have sold it to any one desiring to purchase ? Hot how much any- person might imagine could have been made by its enjoyment.”
It is obvious that in determining the value of the lease, reference must be had to its terms,-conditions and restrictions, as these might largely affect its value. The question, an answer to which was to be found by the master, under the order of reference, was, what was the value of a renewal lease of the premises in question October 1, 1889, considering the premises in the condition in which they were May 3, 1886, and also that said renewal lease was to be identical in terms with the executed lease, except the covenant for renewal, and except also, that the annual rent was to be six per cent of the value of the land October 1, 1889, exclusive of improvements.
The order of reference, in express terms, excluded considerations of value, on any other hypothesis than that the premises were to be considered as they were May 3, 1886, and properly so, as we think. The language is :
“ That said value be ascertained upon the assumption that the said premises have remained in the same condition as they were May 3, 1886.”
The exact date, May 3,1886, is not very material, because the evidence is that June 28, 1886, when appellant took possession under the agreement of that date, the premises were in substantially the same condition as in May, 1886. The order of reference, as well as the law, excluded consideration of imaginary profits which might have accrued to a tenant of the premises by additional improvements, or altering those already of the premises. Green v. Williams, and City of Chicago v. Huenerbein, supra.
The evidence on the reference was substantially as follows : Henry L. Goldy, for complainant, testified that he considered the value of the premises for the five years commencing October 1, 1889, omitting consideration of light and heat, to be $55,250; and that he considered the gross rental value of the rink part alone, assuming it to be 210 by 150 feet, to be $93,000. On being asked how he arrived at those figures, he answered that he compared it with his property further north, as to what it could be used for, like theatre purposes; that taking sixty feet from the front for retail stores would leave about ninety by 203 feet on the rear for theatrical purposes; that to do this the old building would have to be partitioned off and the space divided into stores, which would probably cost in the neighborhood of $5,000; that so changed, the rental value of such part of the rink as was not devoted to stores, would be about $15,000 per annum, and the stores would rent for about $50 per month. Value of land, exclusive of improvements, October ,1, 1889, $350 per front foot.
| John H. Rogers, for complainant, having testified that ^during the last five years before testifying he was pretty ,familiar with property in the vicinity, and that he had charge of property near the property in question, called “ Engel’s Opera Pavilion,” which he describes as having a saloon in front and the pavilion in the rear, testified that the rink part of the premises in question would have been, during the last five years, available for vaudeville, operas, or something of that kind; that he thought tenants could easily have been procured who would use it for such purposes, and that he thought its rental value for five years, commencing October 1, 1889, was $20,000 per annum.
Herman Benze, for complainant. This witness, on the reference of the original bill to the master, testified that the net value.of the lease for eight years from May 3,1886, was $17,200 per annum; also, that he had never been concerned in renting such a place. On his examination on the reference of the supplemental bill, he testified that the net rental value October 1,1889, was $20,000 per annum. Value of ground October 1, 1889, $250 per foot.
Percy Palmer, for complainant, in his examination on reference of original bill, testified that a fair rent for the whole property, commencing May 3, 1886, and down to the time he testified, July, 1888, was $16,500 per annum. On the reference of the supplemental bill he testified, July, 1894, that “ to-day I should think that $20,000 per year income would be about right;” that the ground rent and cost of repair would have to be deducted from that amount. Value of ground October 1, 1889, $300 per front foot. •Says in 1888 he was of opinion that the premises should have netted $16,000 per annum. On cross-examination he testified that the premises should net $20,000 per annum over everything except ground rent.
Adolph Engle, for complainant, manager of Engle’s Opera Pavilion, testified that if he wanted the premises for purposes similar to those for which the pavilion was used, he would probably offer $12,000 per annum; also, that he was not acquainted with rental values in the market, and could not satisfactorily answer what the rental value of the premises in the market was October 1, 1889.
The following question wTas put to Dunlap Smith, Edward S. Dreyer, Anthony Schiller, Henry Tift and W. B. Frankenstein, witnesses for appellant, and the following answers given by said witnesses, respectively:
Q. “ Assume that the improvements upon the premises in question, and their condition, on October 1, 1889, was substantially as follows, to wit: That on the corner having a frontage of 207 feet and 6-inches on Clark street, by 150-feet on Elm street to the alley, was a brick building fitted up and theretofore used for a skating rink; that such building was one story in height, except on the corner of the street, where it was two stories in height, the second story having a frontage of 60 feet and 6 inches on Clark street, by 29 feet and 9 inches on Elm street, and that such second story was constructed so as to be adapted for use as a photograph gallery; assume further that said skating rink covered 31,125 square feet, and said photograph gallery 1,799-g- square feet. Assume, further that adjoining the rink on the south was a natatorium, fronting 4(1 feet and 4 inches on Clark street, running the full depth of the lot to the alley, covering 6,950 square feet, and that south of and adjoining the natatorium, and taking up the balance of the frontage, being 85 feet and 6 inches, was a brick storage warehouse, with -wooden partitions, running east and west ■through the same, which storage warehouse ran to the alley, covering 10,210 and 13-29 square feet, and that in the northeast corner of the storage warehouse was a room occupied by a lessee whose lease ivas to expire on the'1st of October, 1890, for an electric light plant, a part of which was 38-f feet wide by 33-£ feet deep, and the remaining part of which was 46J feet wide by 2SJ feet deep, the whole covering 2,614 and 11-24 square feet, and that said wide end of said space fronted on the alley. What, in your judgment, was the full value in money, if anything, on the first day of October,„1889, of the lease of said premises, for the term of five years from said 1st day of October, 1889, assuming that the value of said lease be charged with the rent of the ground covered by said improvements, during said term, and that said ground rent was to be six per cent per annum on the cash value thereof, exclusive of improvements, on October 1, 1889, in addition to the taxes and installments of the Lincoln Park assessment to be assessed or payable during said term of five years ? ”
Dunlap Smith: A. “ I do not believe that it had any market value whatever, for the reason that I do not think the property could be rented for enough, during the five year term, to discharge the obligations of the lease in the way of taxes and interest, ground rent, and the cost of remodeling, in order to get the best rent out of it, to pay those expenses and charges.”
E. S. Dréyer: A. “In my opinion such a lease would not have sold for one dollar in the market. To the contrary, it is my firm belief that if a man had had such a lease on said premises for five years, he might thank his stars if somebody had taken it off his hands.”
Anthony Schiller: A. “ I don’t think it would have been of any value at all.”
Q. “ Do you think, Mr. Schiller, if such a lease had been put on the market at that time, it could have been sold fo? anything whatever?” A. “No, sir, there could have been no purchaser found, I believe.”
W. B. Frankenstein: A. “None, in my opinion. -In view of all the expenditures you say, and the liability of assessment, 1 do not believe that that lease could have been disposed of at all, for any bonus.”
Q. “ Did it have any cash value at that time, that is, over and above the charges % ” A. “ The lease itself ? ”
Q. “ Yes.” A. “None, in my opinion.”
Henry Tifft: A. “I would not have given anything for it, and I do not think that 1 could have found anybody else that would have given anything for it, and I don’t think anybody would have bought it. I don’t think it had any market value.”
N one of the witnesses named were cross-examined as to their testimony that the lease was of no market value. No objection was made to the question put to these witnesses, and the question being as to the value of the lease October 1, 1889, was the question to be determined, as held by the court in Cilley v. Hawkins, supra.
After the witnesses above named had testified, appellee called Frank A. Warner, who testified that he was in the storage warehouse business, and that the storage warehouse on the premises in question would not, in his opinion, be a profitable investment.
Goldy and Rogers, appellee’s witnesses, did not testify as to the rental value on the hypothesis that the premises were to be considered as remaining in the condition in which they were May 3, 1886, but evidently on the hypothesis that they might be materially changed. Palmer did not testify as to rental value October 1, 1889, but to such value at the date of his testimony, July 12, 1894. Benze evidently testified July 7, 1894, on the theory that rents had increased since October 1, 1889, and added a percentage to his estimate on the former reference.
Rone of complainant’s witnesses testified as to the value of the lease on the market October 1,1889, the very question at issue. Evidence given on the reference of the original bill as to rental values, at a time when the restrictions as to subletting and assigning had been removed for the then existing term, and permission given to sublet the premises for a summer garden, which means a garden where beer and other liquors are sold and drank, could throw little, if any, light on the question of the market value of the lease October 1,1889, containing all the restrictions and conditions of the executed lease. We are of opinion that the master’s report as to the value of the renewal lease is not supported by the evidence, add that it is manifestly against the weight of relevant evidence.
Such being our opinion, we deem it unnecessary to consider other objections made by appellant’s counsel in respect to the matter of the renewal lease.
The court decreed the payment of $20,919.20, the principal sum found due by the master October 1, 1889, ón the reference of the original bill, with interest at the rate of six per cent per annum from October 1, 1889, till July 1, 1891, and at the rate of five per cent per annum from July 1, 1891, till March 27, 1900, the, date of the decree, which amounts, principal and interest, to the sum of $32,256.22. Counsel for appellant object to the allowance of interest from October 1, 1889. We find no valid objection to the allowance of interest. October 1,1889, the breach occurred, and then the value of the renewal lease was payable.
Appellee’s counsel have assigned, as cross-errors, that the court erred in setting aside the report of Waller, master, and in not allowing compound interest on the amount found due to appellee under the original bill. We can not sustain these assignments.
On the appellee remitting $53,695.36 from the amount decreed wdthin twenty days from this date, the decree will be affirmed as to the remainder, namely, the sum of $32,256.22; otherwise the decree will be reversed and the cause remanded. Appellant to recover its costs in either event, affirmed on remittitur; otherwise reversed and remanded.