Fink v. Spetnagel

BY THE COURT.

“Taking these up in the order stated, Fink’s allowance of $62,500 is first to be reviewed. This allowance is challenged by Fink on the ground that the parties to the lease provided an option to purchase the premises at $75,-000.00 and that the amount of this option should be held as an agreed valuation, at least as between Fink and Nelson and Petrakis. We do not think this contention is sound or that the amount of the option to purchase should be conclusively adjudged as the valuation of the property.

The option to purchase, therefore, except for evidential purposes, fades from the picture. The trial court, therefore, was at liberty to consider all the evidence and all the circumstances in determining the amount to be allowed to Fink. The trial court probably based this valuation upon the basis of six per cent to produce the annual rental at the time the property was appropriated, and, upon a full consideration of the evidence, we cannot say that the allowance made in favor of Fink was contrary to the manifest weight of the evidence.

The finding in favor of Nelson and Petrakis was evidently based upon the present worth of the annual payments provided for in the assignment to Spetnagel, Davis and Myers. While there was a provision in this assignment for the payment of $40,000.00 by Spet-nagel, Davis and Myers, at any time, at their election, yet the obligatory provision only required them to pay the $40,000.00 in installments of $2,000.00 per year during the period necessary to extinguish the total amount provided for. The trial court evidently took the present worth of the $40,000.00 payments and fixed the present value thereof at $29,883.00. We are of the opinion that this finding was not contrary to the weight of the evidence and should be sustained.

The finding of $7,617.00 in favor of Spet-nagel, Davis and Myers, made by the trial court, was evidently based upon the amounts actually paid by them and should be sustained.

Counsel for Fink insist that the condemnation fund of $100,000, should be impounded for the benefit of Fink and the lessees. Even if the prayer was broad enough to raise the question of impounding the entire fund, we are of the opinion that the trial court had discretion to fix the present value of Fink’s interest and make an allowance accordingly. We are, therefore, of the opinion that there was no error in making a lump sum allowance. The appropriation of the real estate by the city, under its right of eminent domain, would naturally put an end to the leases, leaving to the interested parties the right to compensation and damages. We have carefully considered all the questions presented by counsel for the various parties in oral argument and in the briefs and we have reached the conclusion that there is no prejudicial error in the judgment of the trial court upon the various issues presented and that said judgment should be affirmed.”

(Ferneding, Kunkle and Allread, JJ., concur.)