#### Advance Amusement Company, Appellee, v. Frederick H. Franke, Appellant.

Gen. No. 19,826.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Tobbison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed October 6, 1914.

Rehearing denied October 16, 1914.

Statement of the Case.

Action by Advance Amusement Company against Frederick H. Franke to recoyer the sum of twenty-five *458hundred dollars deposited by plaintiff with defendant pursuant to the terms of a lease. Plaintiff on March 11, 1912, leased certain premises of defendant for a term ending February 28, 1917, at a rental , of three hundred and fifty dollars per month. By reason of default and failure to pay rent for December and a portion of the rent for November, 1912, the lessor, after giving the statutory five days ’ notice, brought suit for possession of the premises, obtaining judgment therefor December 17, 1912. In the present suit plaintiff recovered a judgment for the sum of the deposit, less the amount of rent that had accrued and remained unpaid to the date of the termination of the lease as aforesaid. To reverse the judgment, defendant appeals.

Abstract of the Decision.

1. Damages, § 88 * —when sum named in lease as liquidated damages construed as penalty. A provision in a lease that in the event the lease shall be terminated by reason of a breach of the second party of any of its terms and conditions by him to be performed, “then and in such event the party of the first part may at his option retain as for and in full of liquidated damages’’ a certain stipulated sum, construed as providing for a penalty instead of liquidated damages in view of the use of the words “at his option.’’

2. Damages, § 88*—when stipulated sum will 8e construed not liquidated damages. Where there is language in the contract indicating that the damages that may arise from its breach were not irrevocably fixed and settled by the parties, the inference would be against the conclusion that a stipulated sum was intended as liquidated damages, even though the parties so denominated it.

Sonnenschein, Berkson & Fishell, for appellant.

T. F. Monahan, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.