(dissenting).
Our case involves the legal obligations of a tenant who has leased property by a lease containing a covenant to restore the property, at the end of the lease, to the same condition as at the beginning, ordinary wear and tear excepted. I think the lessor may not be left in the position where, in order to have the use of the same facilities which he had before the beginning of the lease, he must spend his own money to reconstruct them. For example, in the instant case, there were in place, at the beginning of the lease, 450 storm sash on the large windows of the main factory building. The United States during its tenancy, discarded 375 of these storm sash. The cost of replacing them would have been more than $27,000. The judgment of the court gives the plaintiff $5,000 for the destruction of this property. Whether this means that the court has concluded that the placing of storm sash on these windows would be practically useless, an almost total economic waste, we are not told. There is no evidence upon which the court could have based such a conclusion. Nothing that we judicially know about New England winters or the price of fuel would justify such a conclusion.
If it be urged that the plaintiff should recover, not the cost of new storm windows, but the value of the old ones when the Government destroyed them, and that the plaintiff did not offer evidence of that value, I think that position is not well taken. The storm sash were in place and in usable condition at the beginning of the tenancy. Their second-hand value would have been substantially zero. The Government destroyed them, so that it cannot replace them. It will cost the plaintiff $27,000 to have storm windows *880usable and in place. I know of no other way to fairly measure the plaintiff’s damage. I think my tenant cannot put me in the position where if I take a little of his money and add to it a lot more of my own money I can again have a front door or storm windows on my house. If my old front door or storm windows have to be replaced by costly new ones, that is a result which the tenant could have avoided by not destroying my old ones.
I think the evidence leaves no room for doubt that if the floors in the pickerhouse and the storehouse were in place, as they were at the beginning of the tenancy, the rental value of those buildings would be substantially increased. All the floor space available has been in good demand at profitable rates of rent. But instead of awarding the plaintiff the amount, something over $100,000, that it would cost to replace the floors, the court has awarded $12,000.
One of the Government’s experts, Mr. Drew, testified that these buildings were worth as much with the floors out as with the floors in. This testimony was given in the face of the fact that the removal of the floors reduced the floor space in the storehouse from 30,000 square feet to 7,500 square feet, and in the pickerhouse from 16,272 square feet, in addition to the basement, to 8,100 square feet. Space in the building where there were several floors was renting readily at prices averaging about 35 cents per square foot per year.
The Government’s other expert, Mr. Scrivner, testified that each of these buildings would have been worth about $6,000 more with the floors in than they were with the floors out. But the difference in rents in a single year would come close to the $12,000 difference in capital value to which he testified.
What the court has really done, it seems to me, is to set off the improvements which the Government has made in the plaintiff’s property against the gaps which have been left by the failure to restore. The court has not been consistent in doing this, or it would not have awarded the plaintiff anything at all. One must concede that there is a certain rough justice in this process of setoff. My objection to it is that I think it is not the law.