CONCURRING OPINION OF
PERRY, J.At the trial in the court below the plaintiff’s case consisted in introducing the policy for $1000 covering the building in question, an admission by defendant that the building was wholly destroyed by fire at the time named in the declaration and proof, either by oral testimony or by stipulation of the parties', that the-building was erected by the plaintiff within a year previous to the fire at a cost of about $3000, and that at the time of the fire there was other insurance on the building amounting to $1000 covered by another policy issued by the defendant company. By stipulation filed in this court, the parties declare that it was made to appear to the lower court upon the trial “that if it were not for the circumstances of this case which are claimed by the defendant to control the measure of damages the defendant would concede that the plaintiff is entitled to recover the amount claimed.” The plaintiff having rested, the defendant introduced in evidence three documents: (a) a certified copy of an extract from the minutes of a meeting of the Board of Health held on January 10, 1900, to the effect that the Board had passed.a resolution that in its opinion all the buildings in that part of Block 15 bounded by an imaginary line drawn along the Waikiki.side of Kaumakapili Church to Kukui St., Kukui St., Nuuanu St. and Beretania St., were infected by plague and that the public health and safety required .their immediate destruction by fire; (b) an original letter, dated January 19, 1900, from O.. B. Wood, President of the Board of *540Health, to Andrew Brown, Eire Commissioner, authorizing the latter -to destroy by fire all of the buildings just mentioned; and (c) a certified copy of two resolutions by the Board of Health, passed on January 20, 1900, at 10 a. m., one being “that all of the buildings in Block 15 bounded by Nuuanu, Kukui, River and Beretania streets be considered infected by plague, the same having been inspected by this Board are in the opinion of this Board infected with plague by reason of many cases of plague having been taken from said Block, and in consequence of proximity to a place where a case of plague had occurred, and that it is necessary for the public health and safety that the buildings on said premises should be destroyed and that it is impossible to render them safe for occupancy by fumigation or other means and that such destruction shall be carried out forthwith,” and the other, that all of the buildings in that Block, “same having been inspected by this Beard, are in the opinion of the Board insanitary, a source of filth and a cause of sickness, and are incapable of being rendered sanitary by fumigation or 'any other means, and that it is necessary for the public health and safety that the buildings thereon should be destroyed by fire, and that such destruction shall be earned out forthwith.” The plaintiff then admitted, as a part of the defendant’s case, “that the fire escaped from the limits which the Board of Health ordered to be burned to the premises of plaintiff; that the fire was started under the Board of Health order about 9:30 a. m.; that the resolution condemning the whole block was passed at a meeting of the Board of Health at ten o’clock that morning; that pnanum's premises were destroyed about two 'o’clock that afternoon;” and that said premises “were within the block destroyed.” "With this the case for the defense was closed. In rebuttal, the plaintiff gave testimony to the effect that prior to the destruction of his building he received no notice of the condemnation. It was not shown by any of the evidence that the Board had issued any order for the execution of its resolutions concerning the westerly half of the block.
The defendant’s sole, exception is to the decision and judg*541inent on the ground that they are contrary to the law and to the evidence, and, thereunder, the only defense is as to the measure of damages, it being undisputed that the defendant is liable if the building was not valueless. The contention is that plaintiff can recover only the actual value of the building at the time of the loss and that, upon the evidence as it stands, the court must rule, as matter of law, that the building had no value, in other words, that the building had no value because (1) the two resolutions above referred to were passed by the Board of Health on the day of the fire prior thereto and (2) the building was infected with plague to the extent stated in those resolutions.
For ascertaining the actual value of a building different methods have been adopted in different cases, varying according to the circumstances. Sometimes such value is declared to be the cost of construction less an amount representing the depreciation due to age. This, perhaps, would be the criterion most favorable to the plaintiff in the case at bar; the building eo-jt $3000 and was practically new when destroyed. No materia! depreciation due to age was shown or could have been shown. Another method would be to find the income-producing capacity of the building and from that calculate its value. Again, the market value has been suggested as the “actual value.” This, I think, is the standard of measurement most favorable to the present defendant.
Let it be assumed, — what is at least doubtful — that the market value is the correct test and that the peculiar conditions relied upon by the defendant can be considered at all as element * in the valuation. The value is to' be ascertained as of the time of the loss and in the light of the circumstances then existing as they appeared to intending purchasers. The only circumstance suggested as having a depreciating influence on the pries is the passage of these resolutions of the 20th of January. But those resolutions were not passed until ten o’clock on the morning of that day and in all probability were, at two o’clock in the afternoon, known to but a very few, if any, persons aside from the members and officers of the Board, and could no* have had any effect upon intending purchasers ignorant of their pas*542sage. As to the mere fact that plaintiff’s -building was situated in a block in other buildings of which plague cases had been found, — if indeed this can be properly.inferred upon the record - — it certainly can not be held as matter of law that that fac-t of itself would cause such intending purchasers, ignorant the resolutions, to lessen their estimates for purposes of bidding from $3000 to $1000 or even to $2000.
Let it, however, be even further assumed, in favor of the defendant, that the fact of the passage of the resolutions was at two o’clock known in the community generally. It is, of com se, easy to understand that that fact would have a depressing effect upon the selling price. It may also be assumed in this connection that the Board of Health had the power to- pass the resolutions at the time and in the manner in which it did pass them and that the resolutions would, as to any declarations on the subject of infection by plague, be conclusive and binding on -the plaintiff in any proceedings thereafter had between him and the Board of Health or its members. ' It would at least be equally true that the Board would have- the like power to set: aside its findings of fact and to withdraw or rescind its resolu'tions. This last mentioned fact was, as well as the first, an element to- be considered by intending purchasers; and, while it may be that many would have been deterred from bidding because of the passage of the resolution, it may well be that others would have been found able and willing to pay a substantial sum for the building, assuming the risk as to showing to the satisfaction of the Board that the building was in fact uninfected or that it could be disinfected by agencies other than fire and. as to persuading it to rescind its former action. "Who can say that that sum would not have been as much as $100 or $1000 or as much as $2000? Can this Court say so>, as matter of law? I think not.
It is further contended that the building was valueless because it was so infected with plague that it could not be disinfected except by destruction by fire. As to this also we must look back to- the facts as they existed at the time of the fire and as they appeared to -intending purchasers. It may even be *543still further assumed that the building was in fact infected with plague. However conclusive the resolutions were upon the plaintiff, they clearly could not make or alter the facts as to the existence or the degree of the infection, so far as intending purchasers were concerned. Such purchasers, — I refer now to those willing to take chances as to securing a rescission of the resolutions — may well have differed with the Board as to the possibility and practicability of disinfecting without burning. They may well have firmly believed that the plaintiff’s building, new as it was and with no case of plague traced to it or charged against it, was capable of being disinfected and rendered clean and safe by less costly methods. That was purely a matter of opinion upon which men had a right to differ. Even with these additional assumptions against the building, it cannot, in my opinion, be said, as matter of law, that no purchaser could have been found able and willing to pay as much as $100 or $1000 or •even $2000 for the building, much less that no bid at all could have been secured. The defendant concedes, as above stated, that if the trial court was not bound, as matter of law, to find that the building was valueless,. the plaintiff is entitled to recover the full amount claimed.
If the test of income-producing capacity is applied, the same result is reached. Erom the mere fact of the passage of the resolutions it does not necessarily follow that the plaintiff’s building at once ceased to have any earning capacity or rental value. 'The owner mmself, even though the resolutions while in force were conclusive upon him as to the facts recited in them, may well have entertained the hope of being able to secure their revocation, and tenants, both actual and prospective, may, in spite of the declarations of the resolutions, have been found who regarded the building as fit for occupancy or as capable of being disinfected and .rendered habitable and who were willing to pay rent for the use of it even though at reduced rates. The court can not, in my opinion, upon the mere proof of the resolutions, undertake to say as matter of law that no such tenants could have been found and that no rental what- ■ ever could have been • obtained.
*544No reference has been made to the danger to the plaintiff’s building at two o’clock in the afternoon from the advancing conflagration or from the fire declared by the Board of Health to be necessary, because fire was 'the very peril insured against and one, therefore, not to be considered as an element in the measure of damages.
Eor these reasons I am of the opinion that from the mere proof of the two resolutions of the Board of Health it cannot be held as matter of law that plaintiff’s building was valueless at the time of the loss, and that there was sufficient evidence to support the decision and judgment and concur in the conclusion that the exception should be overruled.