*1 any knowledge plaintiff’s of ac cause relevant showing by plaintiff Furthermore, tion. is no there knowledge having relevant witness or witnesses pro power to this occurrence were within defendant’s duce at the time failed of trial and that defendant produce justification. trial them without giving in of this should have discretion wide (Hildebrand Co., 41 Ill struction v. Baltimore & R.O. App2d 217, 630) in the in we find NE2d properly stant case the trial court exercised its discretion refusing give requested instruction. judgment is affirmed. Affirmed.

STAMOS, ENGLISH, J., P. concur. J. and Schipper Block, Corporation, Incorporated, Illinois &

Plaintiff-Appellant, & Com- v. Carson Pirie Scott Defendant-Appellee. pany, Corporation, an Illinois No. 68-87. Gen. Third District. 20, 1970. March Rehearing 16, 1970. April denied *3 STOUDER, J., dissenting. P.

Letter, Newlin, Fraser, McCord, Parkhurst & of Peo- ria, Mcllvaine, Chicago, appellant. for Wilson Morgan Sidley

Davis, Witherell, Peoria, & Chicago, appellee. Austin, of *4 RYAN, J. department

Plaintiff is the owner and lessor of a store building which leased defendant under 99-year is to the which commenced in 1914. It a net lease lease is with paying property. taxes and insurance on the the lessee building on Based acceptable of the land and 1914, provides lessor and lessee in for the lease figure a rental appraised of the value of land 6% buildings and beginning plus period, at the of the 1% appraised buildings. value of the This rent fixed was years. for ten provides appraisals The lease further for succeeding 10-year to be period, made for each with the percentage apply ap- same rent formula to to the new praisals. lease, party required Under each is appoint appraiser, judicious competent, one who must be disinterested, appraise and and who value of is property appraisers involved in the If lease. the two agree upon property, cannot the value of the finding to select three a third and the appraisers, majority them, or a considered shall binding. agree appraisers In the case no two of the three averaged. upon value, appraisals their shall original requires an- questions: two swer your judgment, pres- ‘What, in

“1st. candid is lots, value, whole, the several ent fair cash as a including ground demised, pieces parcels and buildings improvements thereon?’ judgment, pres- your ‘What, candid

“2nd. buildings whole, value, ent fair cash pieces parcels lots, improvements on several ” ground demised?’ making provide that in the lease was amended subsequent appraisals shall any permanent addi- value of into account the then take repairs distinguished improvements, tions premises lessee upon replacements, placed provided further paid It is the lessee. for building rental appraisals that the amendment value in its less than stated purposes never be shall $502,000. *5 attempting comply appraisal of terms with the commencing party the lease for in the decade each appraiser. appraisers selected an failed When these agree appraiser. third value, on the selected a among de- found, things, trial court the other agreed appraiser fendant’s and the third agreed figure that such under the controlled lease. brought by plaintiff con- This action was obtain lease, appraisals for aside made struction the set establishing peri- purpose 10-year the for the the rent commencing od in the rent to have established trial, de- the court entered a court. After a the trial dismissing Complaint equity, cree the for want appeal which this is taken. impor- review, presented

Of for more issues disqualified are: tant whether one of was required by he not disinterested as because was great lease; con- latitude in whether had struing lease; appraisals invalid whether are including mistake, in the construction result mistake lease, granted the nature the relief to appraisals invalid. if it should be determined are set For are hereinbelow reasons which various forth, this trial court in we feel that the decision of the ap all, defendant’s must be case reversed. First Kuehnle, re praiser, Walter not disinterested was point objection quired on this the lease. Plaintiff’s trial have been well taken and should heeded Accordingly, appraisal considered cannot be his court. standing or in binding alone under the whether appraiser, purposes for conjunction the third with appraised averaging. had Kuehnle The facts building as the defendant department store securing val a reduction assessed the defendant sist again time 1964 at the 1961, same 1960 and ue in During being under made lease. re- through 1964, firm Kuehnle or period his $34,100 ceived compensation from the defendant for var- *6 services, ious exclusive of services in connection with the appraisal. appraisals signed by The tax were Mr. County Kuehnle and filed with the Peoria Board of Re- purpose taking view. The the an before possi- Board to Review is establish low value as as a possible. ble order to low real obtain as estate tax as Furthermore, neither Kuehnle nor the defendant dis- plaintiff, closed this fact to the and the fact was not dis- plaintiff deposition covered was until Kuehnle’s Thus, taken in this when Kuehnle selected suit. was appraise conjunction lease, property to with already preconceived opinions he to value had formed of low under which militated in favor circumstances record, all opinions value and had made a matter of these plaintiff. without disclosure to the appraisers The trial court in its order found that profession “qualified in their unbiased.” and were were opinion supplemental “The In a the trial court stated: charge only Complaint made in the related bias appraiser the evidence was Kuehnle and the thrust of having appraised property previous on occasions Having con- preconceived value. notion their he had a opinion cited, court is not of sidered the cases giv- disqualify Kuehnle from sufficient this was appraisal nor would ing opinion of a disinterested opinion require to be his biased as cause him be so disregarded. went to It evidence which was aside or set nothing testimony weight else.” of his appraiser Kuehnle relationship with prior of the mat- property involved not a the defendant testimony weight the trial of the went to ter that relationship his concerns opinion This stated. court’s of the lease appraiser. The terms an qualification as ap- competent act an person shall provide: “No person except it be a of said praiser for either 40 a re- competent, judicious If such and disinterested.” lationship the defendant and as Kuehnle had with person, then property him “interested” involved made an competent appraiser virtue he an was not to act as provisions of the lease. provisions special qualifications contained were These govern qualifications which in the lease and not con possess. We are in this case must relating disquali general herein law cerned with the special qualifications appraisers, fication of but with The cases forth in the lease. set 157, Education, Ill 75 NE2d Giddens v. Board of 98 NE Education, Ill v. Board Sebree party in prior employment held that point. disqualify not in volved did not *7 require that not involved did In those cases leases be “disinterested.” having any interest defined as: Disinterested is “Not controversy; free from to matter referred or in fair-minded; partiality; impartial without prejudice, or interested; interests; previously not biased pecuniary not prejudiced.” “distinterested” 314. The term or 27 CJS pecuniary simply of interest but mean lack does not a preju- or requires not to one biased be Phrases, Disinterested. diced. Words City the mind. prejudice conditions of are Bias 165; 579, In re Wehrle, NE Naperville 340 Ill 173 v. Rptr App2d 222, Richardson, Cal Adoption 251 Cal 59 interchangeably Although often used the terms are 323. mind, single together to indicate a state State, 22 Okla Crim exactly synonymous. v. Littrell not legal acceptation, means 184, 186. “Bias” in its 209 P leaning rather than of the only one toward a imports the formation a other; “prejudice” contradistinguished from judgment anticipatory fixed “Prejudice” may yield evidence. opinions which those 41 prejudging means a of a case from cause. It means opinion. Phrases, settled or fixed Prejudice. Words and prior appraisal Kuehnle property his of the purposes prejudged tax had prop the value of the erty. He had formed there a conclusion prior appointment appraiser. his as an

In Co., Arden A2d Scott v. Del Ch Farms 81, the dissenting value of stock of stockholders was by appraisers be determined who were “disinterested persons.” previously Scott, One Davis had one advised dissenting given stockholders, a de- and had Scott report computed “appraisal tailed in which had he an complainant’s purposes valuation” of For stock. stock, proceeding to value of determine the designated appraiser. subsequently Scott Davis as an. person. court held that Davis not a “disinterested” language page quite appropriate court at in our case:

“It Davis no means follows from the facts that necessarily appraising unfairly act would might judgment stock. But that his risk subconsciously, by pre- influenced, consciously or his recommendations, vious conclusions and them, he tendency attempt justify is such expected the freedom to act with should consequence, a ‘disin- required. he is not mind person.” terested’ *8 562, 15, 214 Tenningkeit, 204 NW

In Kraft v. Iowa appoint com- provided that the court shall the statute surveyors “disinterested” or more of of one mission destroyed disputed and boundaries. corners lost, locate acted, un- previously appointed had The commissioner making defendant plaintiff, for the to the known at question. stated survey premises of page 563:

42 plaintiffs “The were entitled to have a commis- appointed expressed sioner who had not formed or opinion subject an in relation to the matter.” page: The court continued on the same “May commissioner, who, prior said that a appointment, very to his for one acted in the matter litigants, absolutely mentally free and un- by findings trammeled former his and would be un- opinion upon prior influenced his based his in- vestigations and mathematical calculations?”

Many may appraiser factors an indicate that is not Even in disinterested. factors which considered dividually standing might alone not indicate interest might according combine to do so circumstances Repeated employment of the case. parties, may conclusive,

one of the while evidence disqualifying of a interest. Farmers Mut. Conservative Neddo, App 1, 401, Ins. Co. v. Ill Ind 40 408 NE2d (1942); Missouri, v.Orr Farmers Mut. Hail Co. of Ins. 372, (1947); Note, 563, Mo 201 104 356 SW2d 952 ALR (1936). 566 Concealment or failure to disclose facts might party question ap which cause other praiser’s appointment the time of disinterestedness at his is evidence of Coon v. Fire Ins. Co. of Hart bias. Nat. ford, 407, (S 1925); 126 213 410-12 Ct Misc NYS Agricultural Co., v. Ins. 32 Bradshaw NY NE (1893). repeated employment Kuehnle of Mr. paid defendant, compensation that was the substantial pursuant employment, the nondisclosure of this this employment by defendant, em nature of this ployment reduction a tax estab secure value, preconceived lishing appraised a lower and the property opinion formed as to thus *9 question negate are all factors which the con- combine required by dition of disinterest as the lease. major

A the error in this second case involves construction of the The lease itself. lease as amended requires appraisers that “. . . the. . . . take shall not into any permanent the account then value of additions distinguished improvements, repairs as or re placed buildings placements, upon said the lessee paid however, lessee; provided, and for buildings purposes of said rental shall never at time than amounts set be less the several page lease, on here forth of said reference to which is greater certainty.” by had for The evidence disclosed many building by changes to the had been made com the lessee. trial court allowed construing meaning plete discretion in of the lease changes. regard This fit with to these saw called for lease was error. under the judges Their function is to neither nor arbitrators. pursuant They no au appraise have to the lease. thority event of dis construe the lease. In the agreement uncertainty, final court has legal significance mean authority to determine language Co. v. ing Union Trust of the the lease. (1932). Education, NE 819 348 Ill Board appraiser, case, the third Kuehnle both this meaning misconstruing Newcombe, erred in They erred language also above-quoted lease. building applying methods valuation different They in their improvements. further erred repairs or re- of items between of allocation method They erred further permanent additions. placements and meaning understanding of the words to their understanding application A correct value.” “then appraisal. precedent to a valid a condition lease original and the provisions From required appraisers are questions therein two *10 answer, apparent authority it appraisers’ is that under they the lease is to determine value and are they to determine parts the value of the various appraise given They “as a whole.” wide discretion determining give value but the lease not does appraisers any authority of the to construe terms holding think lease. We that the erred in that trial court great construing appraisers “the had latitude lease.” Chevy

In Services, Inc., Marceron v. F2d Chase provided the lease that the rent be deter- shall appraisers appraisal mined a committee of whose binding upon shall be lessor and lessee as to question premises. of rental value of the leased The page at said 158: dealing appraisers appointed

“Here we are with solely appraise value of real estate and its rental they preliminary value. To be sure had to make a interpretation or tentative of their instructions powers But as defined in the leases. that does carry power finality. par- it with to do so with authority could final in third ties have vested such grant persons, implied it is not from but to be a authority appraise value. appears appraisers’ it that construc-

“Thus properly tion of the formulae can reviewed appraisers’ construction trial court us. distinguished formulae, from being vires, presump- value, ultra is clothed with no of correctness. The trial court’s affirmance tion appraisers’ is likewise no determination obstacle court, in this first because to de nova construction partly er- on an decision was based the trial court’s namely appraisers’ ground, inter- roneous authority was con- pretation their own charter second, parties; unlike because on the clusive question value, of land or rental one purely only of law and involves construction of written instrument.” requires appraisers

We think that the lease property first value the as it stands at the time appraisal, including perma- replacements, repairs, all say, improvements. nent additions and That is to Secondly, arrive at valuation a whole.” “as must then “then value” deduct permanent distinguished improvements additions or arriving repairs replacements. “then at the permanent improvements, value” of the additions improve- *11 must consider the additions or part separate ments a of the whole and not as standing separate independent and dis- alone and items done, If each tinct from entire this is structure. part a and the will have value as to the whole relates parts the whole. of the will not found to exceed sum be their appraisers erred in further feel We that these replacement repair of what or determination was a or distinguished permanent addition from what was clearly improvement. means We believe that only improvements permanent those additions or be repairs replacements are or do not constitute which building. Thus, appraised value of the deducted from the then val- although order for a deduction would be original part struc- of the which was not a ue of an item given to that ture, have to be consideration would any, con- item, an if part or of such portion original part replacement repair of a or stitutes Amendment, repairs building. 1924 Under appraised from the replacements not to be deducted are building. additions and Permanent whole value of the only to the extent deducted improvements be are It repairs replacements. do not constitute re- should opinion this court that is the begin negotiations anew the lease and under open their 46 appraisal procedures called for in the lease under guidelines. these appraisers If disinterested are selected guidelines followed, these are de- rent can be termined under the lease and the not re- court will quired to property either fix the value of the or the amount of the rent. pro function of under a lease

vision like the one involved case limited to the this determination property. Appraisers of the value of the are Gale, (1880); not arbitrators. Norton v. Ill 95 533 Sebree v. Chicago, 438, 446, Board of Education of 254 Ill long (1912). 98 931 NE So as the dis qualified scope authority and act within the of their proper under the lease, apprais construction of the their binding al will be in the absence of mistake fraud. appraisers’ ultimate determination will not merely might appear aside set to a Court because it high low, upon (1) be too or too but it will be set aside showing of a fundamental mistake more than mere judgment, (2) disqualification error appraisers, (3) (4) give fraud or undervaluation such rise faith, partiality inference of bad or constructive fraud. Chicago, Union Trust Co. v. Board of Education of 348 256, 266, (1932); Ill 819 NE Board of Education Frank, App 367, (1896); v. 64 Ill v. Giddens Board Chicago, 157, 168, of Education of 398 Ill 75 NE2d *12 Citing (1947). cases, Supreme numerous our Court stated Chicago in the Union Co. v. Board of Education Trust pp case at 266-267: repeatedly held

“It has been that mistake giving value in effect to an element of appraisal scope nullifies not within appraisal of a sub- since the result is an j other than that submitted.” ect matter ap- made of the fundamental mistakes Some praiser in were: He used one method Kuehnle this case fixing building entirely value for the and different fixing

method of for what he believed permanent improvements, lessee’s the result with the sum of the felt of these which he items values permanent improvements constituted exceeded the val- building perma- ue he attributed to the entire with the improvements nent He erred in attached. further treat- ing things permanent improvements as or additions entirely primarily replacements. which repairs or or virtually He treated the entire done on the ex- work building permanent improve- terior of or addition though work, ment aside from and beautification modernization, represented change no function actual utility of natural of the exterior the elimination save light which we and ventilation. Under the formula previously elaborated, have this work would exterior degree, repair regarded, least, have to to a at dispute replacement. the exterior was There no badly this was done. We deteriorated before work ap- necessity do not feel the make description categorize by physical praisal nor replacement, every repair, separation item each and improvement. permanent can addition or along guidelines perform this function should forth above. set he at testified that Newcombe building though “kept it were

tempted to visualize the change original 1914 condition alive” in without its meaning He felt alteration. such was is erroneous. Newcombe a construction lease. Such depreciat taking consideration as a into further erred required ing influence of the lease itself factor improper every years. and un reappraisals ten This was condemned Such a construction fair to the lessor. Borden, Springer v. Ill Supreme our Court previously cited. (1904) the Giddens case 71 NE 345 page case, 522: court said at Springer In the *13 “According theory defendant, of a lease very under may favorable terms to the lessee made showing still more to him that favorable depreciate terms of the value of the reversion. A reduction in value the reversion equal rent, would be to a reduction of reduc- and the reversion, tion of would rent reduce the and so on in rule endless succession. The contended wholly impractical. for is plan ... for No such fixing anticipated by the rental could have been parties.”

The ap rent under the Kuehnle and Newcombe praisals $63,940 per year, is rent whereas the for preceding years agreed to, which the had on sales, $140,000 based has been from to 1%% $165,000 per year. appraisals The rent under these only than $75,000 per year less the 1924 rent of and is $5,000 began more than the rent the decade which comparison in 1913. A give of these cause rents to suspect to court have errors made. have been We indicated above what we believe those errors be. This say constructive, fraud, is not either actual required plain has been shown or is to be shown appraisals. tiff in order to invalidate the view of rulings made, that have been we need not hereinabove pass on such matters. points judge

Other minor were raised. trial suggested part plaintiff on the conduct that would preclude plaintiff attempting separate tend from repairs replacements permanent additions suggestion improvements. This was opinion. was alluded to in its court made no trial finding estoppel. part no We find conduct on the lease, party however, operate to this which would either segregation party either from the items bar those parties agreed set forth in the lease. The fact *14 to previous certain rentals on the ne- occasions without cessity resorting appraisal spelled to the method out resorting in the not bar them to the lease does appraisal negotiation to simple method re- when failed solve the rental does for current decade. Neither running keep repairs the failure to account replacements operate estoppel the lease does since require not this. by plaintiff

Evidence was offered concern ing Bergner department the lease to the store across property Such close street. evidence similar in such to proximity incorrectly was excluded the trial court. Such evidence both and material to a consid is relevant eration it not the function value. While is spell detail mat court to out for the in what they consider, it in nor is court to ters should appraisers, there terfere with the methods used good oppor why is this avoid an no reason court should tunity clarify remedy misapprehensions and to mis understanding concerning future case in order that this may litigation may the matter be re be avoided and say that connection, fair solved. Bergner subject to the is relevant this appraisers in properly and could considered arriving They decide would have to decision. at their weight factors. and the other attach to this what should cover its asked for an award

Plaintiff has litigation. provides attorneys’ The lease in this fees attorneys’ pay fees incurred as lessor’s the lessee will part Al of the lessee. on the “default” a result of this though made the resolution have been mistakes proce attempted utilize the matter, have question. the rent resolve the lease to forth dures set part lessee “default” on no actual findWe disposed make an award accordingly not we are attorneys’ case. in this fees It pointed should further contrary out that statements of Kuehnle contrary and Newcombe and finding court, agree- the trial there was no actual ment on value between Kuehnle and Newcombe. The evidence agreement showed that did not reach on building. the value of the they reported What was that the full building fair cash value of $502,000 was because this minimum value called for in the fact, appraisals something lease. In their were less than figure agreement this and were with each other. *15 Because of the of part lack on disinterest the of Kuehnle and because of the fundamental that were mistakes made Newcombe, both Kuehnle and it would likewise be im- average proper appraisals provided to the in figure. to arrive at a urges

Defendant of decisions the trial ought against to be sustained are unless weight plaintiff manifest of the evidence. The cor has rectly pointed out that rule not the such is test this concerning appraiser’s case. The evidence interest largely undisputed. controversy ap is The involves plication relating disqualification ap of the law praisers weight applica and the rule has no manifest Dierking, tion. App2d 4, First Nat. Bank v. Ill 230 (1967). Likewise, NE2d whether the trial court’s appraisers correctly conclusion that construed the manifestly against weight lease is evidence consequence. is no It is not the evidence with which It The we are concerned here. the law. manifest weight apply evidence rule does not construc tions of law. stated,

For the decree of the trial court in the reasons instructed to be- this case is reversed. appraisal procedure gin called for in the lease anew the findings guide- subject, however, instructions, to the opinion. lines this

Reversed.

ALLOY, J., concurs.

STOUDER, J.,P. dissents.

DISSENTING OPINION STOUDER, J. agree judg- majority

I do not with the court. my opinion, not, ment of the trial court is erroneous majority I the trial as found believe that ought action affirmed. As can be seen court’s majority opinion, general areas from the there are two controversy relates The first involved case. this qualifications of relates second in the to the infirmities itself. appraisers, respect qualifications of am I

With authority proposi- support find unable to requiring ap- majority opinion in the tion as stated “competent, judicious praisers disinterested” *16 special qualifications upon appraisers. imposes Terms “unbiased,” “unprejudiced” “impartial,” and “dis- such meaning may have differences interested” shaded appear that particular It not applied context. does in a uniquely quality and distinc- is a “disinterestedness” expected qualifications tively the usual different appraiser. of an Educa language in v. Board of

Indeed, Giddens negates conclusion NE2d tion, 398 Ill qualification or special not is a disinterestedness appraiser. In Giddens dinarily expected of an notwithstanding in failure to “Nevertheless, states, commanding provision a broad corporate in the leases impartial, and be disinterested appraisers shall undoubtedly it is that, true in addition to an interest as mortgagee lessee or being property of school fund representative parties, one of the other circumstances subject exist which will appraiser disqualification.” an to opinion Later in the states, the court it evi- “While is dent from an examination of the authorities that all agree do grounds not particular as to the suf- which are disqualify ficient appraisers, prop- arbitrators and two may ositions First, be deduced. each case must in a large governed measure, its own circumstances second, an disqualify may interest or bias to small, direct, capable but it must be definite and demonstration, remote, specula- rather than uncertain or existing tive. The facts and circumstances in the case compel at bar the conclusion that whatever interest Clark and reported Seleenbrecher had in the valuation Appraisers, indirect, the Board of is remote and consequently, require uncertain and insufficient dis- qualification.” majority opinion declines follow apply purported special quali- Giddens because fication of disinterestedness. Since the it- Giddens case dispels any self such conclusion since au- no other thority support thereof, my is cited in it is conclusion that applicable supports Giddens case is trial court’s conclusion. ought preformed opinion

The conclusion that a of value disqualify is, believe, I in accord with intentions of the to such a lease. Periodic long-term provisions developed revaluation were leases early in the late 1900’s in an effort to intro- 1800’s flexibility duce a limited amount of into the lease. The may compromise provisions be said be an active be- tween interest an owner and user land. Usual- case, ly, property instant involved com- is long-term and the is mercial a business transaction forethought. deliberation and It entered into with party periodic adjustments of each the interest *17 provided reasonably for in leases be determined such possible. any adjustment Before or modification can agreed mutually upon, appear be would reasonable party professional each seek Such and secure advice. nego- may favorable then a advice used as basis agree, parties tiation and fail to event that parties propose appointment of would then an appraiser position. How can such fa- favorable to their except person have a vorable advice be known preformed opinion of value? opin- majority, preformed

To hold as does the that a thereby appraiser con- disqualifies ion of value an subjects trary them parties to the intention contemplated. originally to a hazard not intended or exercising high- opinions professional appraisers their yet judgment may vary widely, accord- est skill best expect- ing majority, each are the lessor and lessee opinions value are appraiser ed to whose select my required a is not since unknown. Such result appointed re- opinion, the mechanism selecting ap- a spectively third and lessee lessor legiti- protection of the praiser, is sufficient assure party. of each mate interest only point that it was At this it should be observed lessee, had a appointed who Kuehnle, appraiser Ehlers, property. opinion preformed of the value of the such a lessor, also had appointed he opinion. was preformed It cannot said particular position than of a advocate less an suspect by the qualifications deemed Kuehnle, whose that each majority court. The fact previously formed an appraiser who had appointed an important conse- property has two opinion mutually regarded bind- quences. First, it must be par- second, neither ing of the contract construction complain about the same permitted to ty ought to be alleged the other. misconduct *18 IAs have indicated, heretofore I believe that Gid- the persuasive dens authority case is of support in trial the court’s action and that the distinction which forms the disregard majority’s basis for the authority for this does any event, In exist. I do not believe that the force authority of the Giddens case is diminished re- butted Scott Co., v. Arden 26 Del Farms Ch principal A2d upon majority the case relied the opinion support reversal of the trial court. The Scott distinguished justi- case can be I on its find no facts and extending fication for applying the the conclusions instant case. analyzing case,

In the Scott it that should be noted interpreting is a decision of a applying trial court appraisal resisting appli- Delaware stock statute. the appointment cation of the shareholder for the of a third appraiser, argued corporation (appraiser Davis that appointed by shareholder) disqualified for was two rea- first, sons, agent he been had of the shareholder and second, corporation, previously unknown he had opinion question. formed an of value shares quotation appearing majority opinion represents in the objection the court’s views on second and the court does, fact, prior opinion conclude that of value dis- qualified Davis. This result to me in- seems somewhat alleged disposition consistent with the court’s other disqualification, namely, employment. fact of Davis’s respect With to this issue the court indicated that ought corporation employment to have known of Davis’s negotiations objec- accordingly, any because his reasoning appear tion This thereto waived. would was opinion equally applicable preformed to be to Davis’s nego- Davis, counselor, If as an investment value. was tiating corporation to with the secure negotiation shares, it not would follow his opinion opinion Furthermore, on an of value? based Bancroft, appraiser qualifications on the is silent appointed by corporation, accordingly, what might have decided if had such an also opinion formed an of value cannot ascertained. finding Accordingly, my opinion it is supported trial court that Kuehnle was disinterested is ap- hence, in the participation the evidence and his praisal did not render void. such brings issue, namely,

This me to next *19 construing appraisers erred in the trial lease and agreeing approving court erred in or such construc- with Appellant many pages of its tion. has devoted brief charges apprais- of numerous lease misconstruction major premise Appellant’s Kuehnle and ers Newcombe. too Kuehnle was is that valuation and Newcombe wrong. Recognizing and, therefore, val- low must be judgment, appellant appraisals of has uation are matters improper it deems to be a bad result attributed what of the lease. construction Chicago, Ill 254 v. Board of Education of

In Sebree long said, 931, “As 438, 98 NE the court as honestly good faith, dis have wide and in act procedure of sources their methods of cretion as to conclusions, of fraud Their in the absence information. binding upon parties. v. mistake, Norton will be 433, Heissler, 120 Ill 533, Gale, . . . v. 95 Ill Stose 88, Sanderson, Ill 161, . . . Pearson v. 11 NE Corporation of Fine Chicago v. 200, Auditorium Ass’n NE prin Thus, .” Bldg., 91 NE 665 .. . 244 Ill Arts appraisers misconstrued cipal whether issue is represent in valuation the differences or whether lease judgment. appraiser’s of an the exercise ed generalized many assertions Appellant makes generalizations appraisers, when such but of the errors respects which the away, specific are cleared vagueness appel- lacking. of misconstrued was major- opinion of is mirrored position lant’s ity although suggesting the court which areas error, vague nevertheless leaves the nature such error and undefined. alleged

The basis for misconstruction of the lease is ap- amendment provides, “. which . . the praisers . . . shall not take into value account the then any permanent improvements, additions or distin- guished repairs replacements, . . .”.

Each of the three valued all the leased buildings as $2,262,000, a whole. valuation Ehlers was $850,000 Newcombe’s valuation Kuehnle’s val- $1,000,000. uation was Each then deducted value permanent improvements of the and found a value buildings permanent improve- less the value of such opinion ments. $1,950,000, Ehlers such value was Newcombe and Kuehnle each concluded after deduct- ing permanent the value improvements, value buildings was less than the minimum ($512,000) hence, established the lease set each upon forth such minimum valuation as the basis computed. the rent was to be Neither Newcombe nor *20 Kuehnle, appellant, contended found the value that permanent improvements exceeded the of buildings. the foregoing appears

From the it the that low valuation objected by the to lessor be the result of miscon- cannot quoted above, struction of the 1924 lease amendment but represents rather in valuation of the differences build- ings appraisers variety employed as whole. The a a of arriving techniques opinions and methods in at their appraisers expected value. This is what to do. Education, 256, Union Trust Co. v. Board of 348 Ill Chevy Services, Inc., 180 NE and Marceron v. Chase general appraisers F2d the rule that announce establishing with the directions their must act in accord authority. support do that Such the conclusion cases appraisers any

the in the instant violated directions case case, contained in the lease. In the Union Trust Co. Supra, appraisers fair mar- did not determine cash Instead, they ket value. a rental value determined fair owner, namely, tax-exempt particular when owned a agency. case, supra, the Marceron concluded the court ought separate to two lots in leases described appraised foregoing have been unit. Neither analogy presents any similarity from cases factual which it can concluded that in the case be in in at failed to the directions the lease bar follow particular respect. ap- majority opinion to alludes errors which determining allegedly

praisers in that certain committed replace- improvements permanent than rather items were permanent im- appear to me that It does not ments. distinguished replacements provements can be pecu- fact, that, area in this is an a matter law competence liarly requiring appraisers, as well significant may differences there as an area which majority opinion. Although has indicated allo- erred appraisers Kuehnle and Newcombe permanent im- particular as between items cation yet replacement, formula no criteria or provement and suggest proposed the allocation offered or is judgment. anything other than a matter majority indicated appraisers erred as If the ought other court, follow that should opinion should from the what ascertain to be able Kuehnle differently from what Newcombe do me, opinion offers Ehlers, To did. matter for that consequently, guidelines and directions no such contrary the con- me thereof seems absence construing the lease. appraisers erred clusion that appraiser New- *21 error is attributed further A de- lease as revaluation the he considered in that combe predating the premises. According value of the majority, citing this improper, authority Spring was Borden, er v. 210 Ill 518, 345, 71 NE and v. Giddens of Education, Board 398 Ill 75 NE2d 286. The Springer case did hold that such consideration was im proper. However, Springer I do not believe that the v. applicable. Borden Except case is companion in a case decided (Columbia at time same Theatre Amuse Adsit, ment 868), Co. v. 211 Ill Springer 71 NE case had subsequent not been followed in decision. In Sebree v. Board of Chicago, supra, Education of v. Education, supra, Giddens Board of declined Springer to follow ap and in each case held that praisers could consider effect of a revaluation lease. The court indicated that there difference of was a opinion among reputable appraisers as to the effect upon value, such a lease apprais but concluded that liberty possible were ers at to consider Al its effects. though Springer Borden, supra, specifi v. has not been cally overruled, appear would that both in Sebree holding principle rejected, and, Giddens its was un authority Sebree, der the Giddens considering Newcombe committed no error the effect of the revaluation lease. conclusion, history of revaluation leases and

litigation respect thereto, history with well case, of the lease involved in this reveal the difficulties problems appraisal associated with such leases. The procedure usually, case, the instant resorted disagreement when on Either values. likely disappointed lessor lessee is to be or even outraged contrary hopes a result which is to their procedure expectations. I believe that fairly in a manner conducted and before a forum selected parties. Accordingly, I believe that the trial ought court’s action affirmed.