LESLIE E. BROOKS COMPANY, A CORPORATION, PLAINTIFF IN ERROR,

v.

T. H. LONG, DEFENDANT IN ERROR

Taylor, J.

The defendant in error, hereinafter referred to as the plaintiff, sued the plaintiff in error, hereinafter referred to as the defendant, in the Court of Record of Escambia County in an action for damages for breach of a contract to lease and deliver possession of certain premises in the city of Pensacola, the plaintiff being the lessee and the defendant being the lessor. A default was taken and entered for want of a plea, and the question of damages was submitted to the presiding judge without a jury, and the judge rendered judgment in favor of the plaintiff for the sum of $750.00. After the ovrruling of its motion for new trial, the defendant below brings the case here for review by writ of error. The proofs on the inquest of damages showed that the defendant entered into a written lease of the premises in question for two years from April 1st, 1913, to March 31st, 1915, at a stipulated rental of $1,200.00 per annum payable monthly in advance at the rate of $100.00 per month, and that the plaintiff had paid $150.00 in advance towards the rent, and that the defendant had failed and refused to deliver possession of the premises a-t the time appointed in the contract of lease, but on the contrary had leased.the premises to other parties and put them in possession.

The plaintiff to prove his damages offered evidence to the effect that he rented the premises for the purpose of conducting a barber shop therein, and was permitted over the defendant’s objection to show what he would have netted in such business if he had obtained possession as contracted for. All of this testimony was objected to on the ground that it was improper, speculative and impertinent, and that the only legal measure of damages in such a case was the difference, if any, between the rent contracted for and the actual market rental value of said premises, but the court overruled said objections and peranitted said testimony to be presented. This ruling is assigned as error. This was error. The general rule applicable in such cases is that the lessee can recover from the lessor for breach of contract to deliver possession of the leased premises, the difference, if any, between the rent contracted to be paid and the actual rental value of the premises. Prospective profits from the business that the lessee expected to conduct in said premises are too remote and speculative, dependent upon too many contingencies to be permissible as an admeasurement of damages in such a case. 3 Sedgwick on Damages, 984; Moses v. Autuono, 56 Fla. 499, 47 South. Rep. 925; Hodges v. Fries, 34 Fla. 63, 15 South. Rep. 682; Jarrait v. Peters, 145 Mich. 29, 108 N.

W. Rep. 432; Sloan v. Hart, 150 N. C. 269, 63 S.

E. Rep. 1037; Smith v. Phillips, 16 Ky. Law 615, 29 S.

W. Rep. 358.

The plaintiff was permitted over the defendant’s objection to show that he had been offered" by a third party "after his contract of lease had been signed an advance of $25.00 per month over the rent he had agreed upon to pay for a sub-lease of the premises. This ruling is assigned as error. This ruling was also erroneous. An offer for property depends on so many considerations that it is not usually regarded as a test of value. 13 Ency. Evidence 451, and cases there cited; Sharp v. United States, 191 U. S. 341, 24 Sup. Ct. Rep. 114; Perkins v. People, 27 Mich. 386; Crosby v. Dorward, 248 Ill. 471, 94 N.

E. Rep. 78; Morrill v. Bentley, 150 Iowa 677, 130 N.

W. Rep. 734; City of Louisville v. Benedict, 147 Ky. 391, 144 S.

W. Rep.

43. In the case of Stewart v. James, 1 Nebraska Unofficial 507, 95 N.

W. Rep. 778, it is said: “In proving the value of property, it is improper to admit testimony of an alleged offer of a particular price for the property, as tending to show its value This is a kind of proof that could be so easily manufactured that its admission would be too dangerous to be tolerated.” In the case of Chicago, M. & St. P. Ry. Co., v. Alexander, 47 Wash. 131, 91 Pac. Rep. 626, it is held: “That neither a party who has made an offer for the' land nor the owner should be permitted to testify to the same for the purpose of showing value.” Tennessee Coal, Iron.

R. Co. v. State, 141 Ala. 103, 37 South. Rep.

433. Yellowstone Pahk R. Co. v. Bridger Coal Co., 34 Mont. 545, 87 Pac. Rep.

963. Since the court below erred in admitting or considering' this proof, there was no other evidence in the case that could sustain the court’s findings and judgment for the plaintiff, since the defendant proved without contradiction, except by the illegal proof of the offer to sub-lease, that the actual rental value of the premises was the same as the rent reserved in the contract of lease. Upon tlie proofs before the court below the judgment should have been for the plaintiff, but only for the sum of $150.00 with interest thereon from the date it was paid as rent in advance.

The judgment of the court below is hereby reversed at the cost of the defendant in error. Shackleford, C. J., and Hocker and Whitfield, J. J., concur. Cockrell, J., dissents.

On Eehearing.

Taylor, J.

In an application for rehearing in this cause the defendant in error agrees to a remittitur of the excess found by this court to exist in the amount reeov ered by him. Therefore, in order to end the litigation between the parties, the former judgment of this court is hereby modified and amended so as to permit the plaintiff below, within twenty days from the filing of the mandate of this court in the court below, to enter a remittitur of his said judgment of all of such judgment save and except the sum of One hundred and fifty ($150) dollars thereof with the interest on said one hundred and'fifty ($150) dollars from December 7, 1912. Upon thhe entry of such remittitur the said judgment shall stand affirmed, otherwise the same shall stand reversed. The cost of the writ of error here to be taxed against the defendant in error. All coucur.