(dissenting).
I am forced, although reluctantly, to dissent from the majority opinion. My difference with the majority arises over the scope of the two clauses which measure the lessor’s liability in case the property covered by the' lease was taken by condemnation proceedings (clause 13, majority, opinion, footnote 1) or sold during the life of the lease (see clause 77, majority opinion, footnote 2).
It seems quite clear that the parties to the lease covered, or at least attempted to cover, a situation which would arise in case the property was (a) taken through condemnation proceedings by certain designated parties, or (b) in case the property *39was sold and the lessor exercised its reserved right to cancel and terminate the lease. In the latter case, it was agreed that the lessor should pay lessee, $40,000.
I agree with the majority that clause 13, the condemnation clause, does not apply because the condemnation proceedings were not by one of the agencies named in said clause. I also agree that the sales clause (77) would not apply to a transfer of said property if the transfer were covered by clause 13.
There is the remaining situation where the property is taken through condemnation proceedings, though not the condemnation proceedings covered by clause 13, because the condemnor is not one of the parties designated in said clause. In such a situation it seems unavoidable that Clause 77 applies, for a transfer through condemnation is a sale (see majority opinion for cases so holding).
This conclusion seems the rational one to be drawn from the entire agreement. We must assume that both parties were desirous of making a lease of this property, the rental and renewal provisions of which were fixed and agreed upon. Also, it is apparent the lessor desired to reserve the right to cancel and terminate the lease in case the municipality or other authorized and designated agents condemned said property. Also reserved was the lessor’s right to cancellation in case the property was sold. If a termination of the lease occurred, it was agreed the lessee should receive a money compensation.
It seems to the writer, that the parties meant to cover, and did cover, all cases where the transfer of property occurred and a termination or cancellation of the lease took place. The two provisions were complementary and meant to exhaustively cover the lessor’s divestment of interest in the property. The price which the lessee was to receive was fixed in each case. It so happened there was a transfer which did not fall under the condemnation clause because this clause was restricted in its application. It did come within transfer by sale provision which limited lessee’s recovery to $40,000.
My reluctance in expressing this dissent is due to the reasons very persuasively expressed in the majority opinion. However, I am convinced that the parties to this lease agreed that the sum of $40,000 was to be the liquidated damages which were to be paid to the lessee in the case of a sale by the lessor and a forced vacation of the premises by the lessee. In view of the ■agreement of the parties, the court may not allow a recovery in excess of the amount fixed and agreed upon by them.