¶1(concurring).
¶2I agree that the provision for liquidated damages is invalid, but not for the reasons stated in the opinion of Judge Gray.
¶3The general rule in the event a tenant abandons the premises and refuses to pay the agreed rents being that the landlord need make no effort to relet the premises and may recover, as his damages, the full amount of such rents, I cannot think of any reason for holding that an agreement that the tenant should pay less than the full amount of the recoverable damages penalizes the tenant.
¶4In his work on Damages, Judge McCormick states:
“If the exact amount of damages which a court or jury would give is certainly predictable, there is little reason for at*360tempting to agree on the amount in advance, unless the parties wish to change the legal standard of recovery. (P. 603.) …
“A survey of the rules by which unliqui-dated damages are measured will disclose how few and limited are the cases where, as a practical matter, it is possible to foretell with any exactness the precise amount or within a narrow range the approximate amount of damages to which the injured party will be entitled in the event of breach. It may be done in one case; that is, where the promise whose breach is anticipated is a promise to pay money. The law here limits the damages to legal interest, but within the range of the lawful maximum even here the damages, i. e., the interest collectible for detention of the money after maturity, may be stipulated, and this seems a true case of liquidated damages.” (P. 604.)
¶5I see no distinction between the agreement here and the agreement to pay less than the rate of interest (damages) allowed by law for the retention of money.
¶6As long as we have the vicious rule that landlords need make no effort to minimize the damages, as other litigants are generally required to do, agreements of the kind involved here should be regarded with great favor.
¶7• I believe the liquidated damage clause in the present lease to be unenforceable only because it applies to numerous and minor covenants of the lease as to some of which the amount of damages agreed upon is clearly disproportionate to the amount of anticipated damages. IS American Jurisprudence, page 686.
¶8On Appellee’s Amended Brief and Motion for Rehearing.
¶9With permission of the court, ap-pellee has amended his brief and now challenges the correctness of appellants’ state,ment that the amount of the damage suffered by them, by reason of appellee’s breach of his lease contract, is $3,331.
¶10This amended brief is submitted m support of appellee’s motion for rehearing.
¶11The lease contract, dated February 15, 1950, whereby appellants leased store buildings 1200 and 1202, includes property not included in the lease contract with appellee. As to such property the contract provides: “The leased premises herein let consist of the two lower stories and two of the four room apartments known as ‘A’ and ‘B’ which are situated on the floor immediately above 1202 South Congress Avenue in the east end of the building. Lessee is also to have exclusive use of the large Iron Safe situated in the back room of the store designated as 1202 South Congress Avenue during the entire term of this lease or any extension thereof.”
¶12The contract provides for a total rental to be paid for the store buildings, the apartments, and the iron safe, and we find no apportionment of the rentals in the evidence, for which reason we are unable to determine the amount of damages sustained by appellants.
¶13The agreement of the attorneys referred to in the trial court’s finding of fact No. 17 set out in our original opinion has not been made known to us and we are unable to base any judgment thereon.
¶14Appellee argues that because of its recital of its beginning and ending dates the lease contract with him is a six-year lease. The parties have treated the same as a five-year contract. The trial court was not called on to interpret the contract, and no point is here presented authorizing us to construe it in any manner other than as it has been treated by the parties.
¶15Appellee’s motion for rehearing1 is granted to the extent that our judgment awarding appellants a recovery of $3,331 is set aside and the cause is now reversed and remanded to the trial court for the sole and only purpose of determining the amount of damages sustained by appellants by reason of appellee’s breach of his lease contract. In all other respects the motion for rehearing is overruled.
¶16Motion granted in part and in part overruled.