(concurring and dissenting) :
Being of the view that there was no prejudicial error I would affirm the judgment below in its entirety. At the outset I am not convinced that the issue, upon which the majority opinion would reverse in part, is before us by any proper exception, in accordance with the rule or embraced in the stated question argued by appellants which simply challenges the right of the respondent to any future damages contending that the new lease was more valuable than the old one.
Assuming, however, that the issue is properly before us the judgment below should be affirmed upon what I think are elementary principles of law. This is a law case wherein a finding of fact by the circuit judge is binding upon us if supported by any competent evidence. Both the master and the circuit judge found, as a fact, that the actual gross rent being paid by TG&Y under its lease for the premises leased under the old lease was the sum of $36,042.88. It is true that the lease called for an annual rental payment of $42,-542.88, but both the master and the circuit judge found as a fact, deduced from the evidence, that the sum of $6,500.00 included therein was not rent, but arose out of the agreement between the lessor and the lessee for a return of 13% on improvements of the value of $50,000.00 added, or to be added, by the lessor to meet the need of the lessee. $49,-200.00 was actually expended with $800.00 held in reserve for minor contingencies. Both the master and the circuit judge concluded, apparently as a matter of fact and law, that the $6,500.00 annual return based on the improvements *598made for TG&Y was irrelevant to the controversy between the parties here. The evidence in the record abundantly supports their factual findings.
It is, of course, true that the agreement between the respondent and TG&Y is not binding upon the appellants as they were not parties thereto, but as to any matter with which the appellants were not concerned respondent and TG&Y had the right to make any contract which they were minded to make. There is nothing to suggest that the improvement agreement between the respondent and TG&Y was in any way unreasonable or prejudicial to the rights of the appellants. Even if the $6,500.00 annual payment which arose out of the improvements be regarded as rent, such would be rental realized from the improvements and not rental realized from the same premises which were under the former lease. So, in any view of the matter, in the absence of any showing of fraud upon or overreaching of the appellants, I agree with the master and the circuit judge that the $6,500.00 annual payment has no relation whatever to the controversy before us.
The evidence shows that in order to minimize the damages occasioned by Richland Bowl’s breach of its lease, respondent, at considerable effort and expense, finally obtained another tenant who was willing to pay as gross rental, for the premises as they stood, the sum of $36,042.88 per annum. The new lessee, however, desired improvements and alterations to suit the property to its needs to the extent of $50,000.00. The parties agreed that the respondent would make such expenditure and that a reasonable return on such would be 13% per annum and that accordingly the lessee would add to the rent that it agreed to pay the sum of $6,-500.00 per annum. There is certainly nothing unreasonable about a 13% annual return on improvements which may or may not be of some value to a lessor at the end of a leasehold.
There were other factors or differences in the two leases which had to be adjusted in order to arrive at what was *599in fact the difference between the rent being realized under the old lease and that being realized under the new lease. After making adjustment for all of these varying factors the circuit court found, as a fact, that the net rental being realized under the new lease was $5,598.70 less than that being realized under the old lease. Such finding of fact was fully supported by the evidence and His Honor’s calculation of the damages incurred after the property was taken over by TG&Y is based upon such finding of fact as to the differential in the net rental actually being realized.
The majority opinion, in my view, simply rejects findings of fact by the lower court, which are fully supported by the evidence, and substitutes in lieu thereof for solution of the difficulty between the parties a formula, which to say the least, is quite difficult of application, which would of necessity involve considerable guess work as to future events, circumstances and conditions and which most importantly allows the respondent no adequate return, if any, by way of interest, rent or otherwise over a ten year period, on the sum of $50,000.00 which the respondent was compelled to expend in order to obtain a new lessee and minimize the damages caused by the breach of the former lessee.