dissenting — The foregoing opinion is based on the thought that the defendant did not bind himself to pay unless he mined coal. This, in my judgment, is an incorrect construction of the contract. It is true, he was only to pay twelve cents per ton for the coal mined; but this is not all he undertook to do. He agreed to work the mine to an extent sufficient to “ make the rent at five hundred dollars per annum, and for the first year the rent to be paid, one hundred dollars per month the last five months ^ in the year.” That is to say, $500 was to be paid during the last five months in the year. This, it seems to me, is an absolute promise to pay. That this is so, and that the parties must have so understood, appears from the fact that the defendant provided a mode by which he could be relieved of such liability. The contract provides that the defendant had three months from its date to prospect for coal, and, if none was found which could be mined at a profit, the defendant had the right to surrender the lease, and thus relieve himself from liability before any part of $500 was payable. The provision in relation to - the payment of twelve cents per ton, and in relation to payments on the first day of each month during the whole year, instead of only five months, has reference to the coal actually mined. But the parties evidently contemplated that the defendant *26might not prospect and open the mine as he agreed to do, and hence the provision in relation to the payment of the $500 per year. This is the only provision in the lease which enables the plaintiff to reap any advantage therefrom, although his land is incumbered at the option of the defendant for the period of twenty-five years, except that he possibly can maintain an action, if the mine is not opened and worked in a reasonable time. Conceding that he can maintain such an action, the measure of his damage is exceedingly uncertain. In my opinion the judgment of the circuit court is correct.