On Petition for Rehearing
Bowen, J.In response to appellants’ petition for rehearing, and the brief in support thereof, in which counsel for appellants indulges in personal criticisms, and in unwarranted, immoderate, and disdainful references to the actions of this court, we wish to acknowledge our fallibility with a full recognition that we as individuals, and sometimes as a court, may fall into error, and that we welcome, and as a court, have a constant interest in petitions for rehearing to the end that justice may be done to the litigants. Therefore, we have given a full consideration to the matters presented in appellants’ petition for rehearing with due regard for the original briefs and records in this case.
*333Counsel asserts that this court was led into .error because of a misunderstanding of the facts and a misunderstanding of the contentions of appellants. In his brief on petition for rehearing he asserts that there was no evidence whatsoever of the fair rental value of the premises, and if there was such evidence, “then appellants have no ground to complain of the amount of the verdict.” The following testimony of appellee, Seth Sells, is to be found in the record:
“Q. What, in your opinion, was the fair rental value per month of this restaurant and the manner in which you were operating there in March, 1949, and for the years subsequent to that on a per month basis ?”
“A. $125.00 per month at least, for that location would be very reasonable.”
This witness was properly qualified as a witness to testify concerning such value and the record shows that he was familiar with the rental values and what properties for restaurant purposes were renting for in and around South Bend. The appellee, Ruth Sells, testified as follows:
“Q. Now as to the rental value of your property out there on Lincolnway, Mrs. Sells, as you had established it and got it going along up to 1948 when this trouble started, what in your opinion -was the rental value of that premises there with this established business along with it per month?”
“A. I would agree with the figure that Mr. Sells gave. About $125.00 per month.”
This testimony showed the rental value of such premises to be $125.00 per month, and when the agreed lease rental of $25.00 per month is subtracted therefrom, and taken in consideration along with the other evidence in this cause, it was sufficient to substantiate the judgment of the trial court.
*334The appellants insist that this court misstates the contention of appellants and objects to the following paragraph from the opinion:
“Appellants’ assignments of error questioning the amount of damages seem to be predicated upon their contention that the appellees are limited^ in their recovery to the rental value of the building as a vacant room, and that the evidence of the rental value of such premises when occupied by a going business was not proper to be considered in determining damages.”
Appellants insist that we are in error in stating that their contention is that the recovery should be limited to the rental value of the building as a vacant room. After a re-examination of appellants’ briefs and appellants’ petition for rehearing, we wish to say advisedly that that is exactly the position taken by appellants in this case. Immediately following appellants’ references to our alleged misunderstanding of such contention, in their petition for rehearing they assert:
“At the time Ruth Sells was evicted from the premises, the premises had been vacant for over three months. The witnesses weren’t asked what was the fair rental value of the leasehold, but what its value would be with Ruth Sells’s established business in operation.
“The question might as well have been, ‘What would be the fair rental value of the premises with Sears, Roebuck & Company’s business in operation there?’ Or, Marshall Field’s, or some other hypothetical situation.”
Now in all honesty, justice and fairness, what is counsel for appellants asserting, except that appellees were not entitled to recover for the value of such premises for use in connection with their business operations, but that they should be limited to the value of such premises as a vacant room since it had been vacant for three months as they assert? The statement in the petition *335for rehearing that appellants did not and do not contend to this effect, that appellants did not and do not contend that the appellees are limited to their recovery to the rental value of the building as a vacant room, just is not true on the basis of the record and the briefs before this court.
Counsel for appellants asserts that this court has made a misstatement of fact and he objects to the last sentence of paragraph 4 of the opinion which reads as follows:
“The appellee Ruth Sells continued to operate the restaurant on the premises and tendered the $25 monthly rental to appellant Moon thereafter up until the time of the service of the clerk’s order directing seizure of the real estate in the present suit, which was filed on June 1, 1949, by the appellants Bowers, Bowers and Schacht against the appellees.”
In making this contention counsel for appellants has taken a paragraph out of context. The opinion had reference to the fact that appellee, Ruth Sells, continued to operate the restaurant on the premises after the notice from Moon and thereafter tendered the monthly rental to him. In spite of appellants’ statements in their petition for rehearing that, the appellees physically vacated the building entirely and padlocked the same months before this action was filed, appellants in their condensed recital of the evidence, assert at pages 131 and 132 of their brief:
“That on March 1, 1949, appellees discontinued their restaurant business on the premises in question here and padlocked the door, but continued in possession and continued to tender monthly payments to Moon.” (Our emphasis)
It must be accepted that the record shows that these parties continued in possession of these premises during *336the time the same was padlocked, and until the time of the service of the Clerk’s order directing seizure of the real estate in the present suit.
Appellants, in their petition for rehearing, have attempted to separate the several acts of Maynard Moon and then imply that the court has ruled that any one of the several acts made Maynard Moon liable. It is clear from the opinion that the court did not so rule with reference to the separate acts but asserted that it was his whole conduct in concert with the appellants, Bowers, Bowers and Schacht, which was contrary to his legal duty under the ten-year sub-lease which he gave to the appellee, Ruth Sells and which even extended beyond the term of his lease for such premises, and it is this entire conduct on his part which made him legally liable for the breach of implied covenant of quiet enjoyment in such lease. This court stated in the original opinion: “Applying the foregoing rules of law to the facts in the instant case, where appellant Moon surrendered his lease to another and caused a notice to quit to be served upon the appellees Sells, which acts in themselves do not constitute a constructive eviction, however, when coupled with his acts in denying the. lease . . . and in later taking possession of the premises ... , it seems clear that he has failed in the duty which he owes to the appellees by virtue of his implied covenant of quiet enjoyment . . .”
After a careful examination of the record and the briefs in the original case and on the petition for rehearing, we are of the opinion that the original opinion in this case should stand.
Appellants’ petition for rehearing is hereby denied.
Royse, P. J., not participating.Note.—Reported in 123 N. E. 2d 195.
■ Rehearing denied 125 N. E. 2d 175.