(dissenting) :■
I am unable to concur in the prevailing opinion. The subject-matter of the insurance was the profits which the plaintiff expected to realize under-his lease, not exceeding $15,000. These profits . were valued at $416.66 per month — an arbitrary sum fixed by the contract.. In case the buildings were totally destroyed by fire the whole amount of the-, policy became payable,! less, a deduction of • $416.66 per month for the time the policy had been running, -and in cáse'they were rendered untenantable, without total.destruction, the same amount (not exceeding $15,00©) was to be paid- for each month Until they 'could, with due diligence, be. repaired. This was-not merely an agreement valuing the profits in the two contingencies' specified, but. it was a limitation of thp profits insured, be they more or less, and fixing á precise and definite way by which the *415total amount, in case of loss, was to be ascertained. When the policy ■ was issued the lease had not commenced to run. It could not then be determined whether there would be any profits at all. Under such circumstances, what did the parties intend? The language used in their contract, it seems to me, clearly indicates the profits stated in the policy, and this amount' the plaintiff was entitled to recover irrespective of whether there- had been any actual loss or not. There is no provision, as I read the policy, as to a partial loss, but only for the loss of profits when the buildings were totally destroyed or rendered untenantable. It serves little or no purpose to refer to the other provisions of the policy, because the rider states what is insured and what, in casé of loss, is to be paid.
This view is also strengthened when we take into consideration the result which would be accomplished if the policy be construed, as indicated in the prevailing opinion, so as to cover a partial loss. ' Assume that part of the premises only were rendered untenantable and that the plaintiff, if. the fire had not occurred, would not have made any profits. In that event he could recover nothing. But assume he could show a profit of $15,000 a month on the damaged portion, he would then be entitled to recover that amount, although if the fire had destroyed all the buildings he could recover only $416.66 a month'. I cannot believe the parties intended to make such a contract, and I do not believe they have. In addition to this the' lease to which the policy refers provides that the rent, in case of a partial destruction of the buildings by fire, is to be proportionately reduced. Plaintiff, therefore, was protected by his policy in case of a total" destruction of the buildings or their being rendered untenantable, and he also had some protection under his lease in case of a partial destruction.
But if it be assumed that the policy does cover the case of a partial loss, I am nevertheless of the opinion that the complaint was properly dismissed, for the reason that the plaintiff failed to prove a cause of action. To entitle him to recover he was bound to show a loss of profits under his lease, that is, the profits which he would have made on the rooms which were rendered untenantable intermediate the fire and their being restored to a tenantable condition. This -he wholly failed to do. He testified as to what his profits had been for theffour months preceding the-fire, and also as' *416to the rents he. liad been receiving from tile damaged apartments, but- he could not show; even approximately, what his expenses would have- been diiriug the time the damaged apartments were, unoccupied, had they .beeti. occupied. It, however, did appear by-his cross-examination that the- landlord had made a reduction of $390 in'his rent on aceomit'of the tire and there is not a scintilla*of. evidence to sbo,w that this, did hot fully cover any profits he would have, made, The plaintiff's contention -is that since he made a profit for the year-as a whole, the loss-of rents'of the apartments in question was' a total loss of profits, but this does not follow. If the apartments, which were damaged had been occupied,, they would necessarily have been-some expense, and there would not have been any profits unless the amount received exceeded such expense, ¡and whether it did or not is a mere matter of conjecture.-
Upon the ground, therefore, that the policy does, .not cover a partial loss, as well as upon the ground that plaintiff failed to prove any loss of profits, I vote for an affirmance-of the judgment.
Judgment reversed, new -trial ordered, costs to appellant to abide event.' '•