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P rented to Fetting (D) for a term of five years. The lease contained a covenant of the lessee to vacate at the end of the lease and to become liable for all damages for the loss of sale or lease or otherwise by a failure to vacate. Upon the expiration of the term, D did not vacate. D mailed checks to cover the prorated rent for the holdover period, and eventually, P cashed the checks without prejudice. P sued D and recovered $6,416.67, a full years rent less monies already paid. D appealed.

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