BICE, C. J.
— The most important question for consideration is, on wbat terms shall t|je defendants be considered as bolding after the expiration of the first lease.
If there was no evidence explanatory of the holding over after the expiration of that lease, the case would be a plain one for the plaintiff. For it is a settled rule, that where a party, having held under a lease for a year, at a certain rent, continues to occupy after the expiration of his term, it is presumed, if there be no evidence to the contrary, that he holds for the time, and on the terms of the original lease. But here we have evidence to the contrary; and in a case like the present, “the terms on which he continues to occupy are matter of evidence, rather than of law.” — Mayor of Thetford v. Tyler, 8 Ad. & Ellis, (N. S.) 95 ; Chitty on Contracts, (edition of 1851,) 287, and authorities cited in note (m;) Biller v. Boberts, 13 Serg. & Bawle, 60.
Here it appears that, not long before the expiration of the original lease, the parties made a new 'contract for a second year, to commence from the 1st day of October, 1854. The new contract was materially different from the original lease, in this, that the new contract does not, like the original lease, provide for quarterly payments. The law is, that rent from a yearly tenant is payable yearly, unless otherwise agreed. — Chitty on Contracts, 284, note (t.) The new contract, thus made, and thus differing from the original lease, destroys the implication of the renewal of the original lease, from an unexplained holding over. That new contract is void as alease by the statute of frauds, because it was verbal, and was not to be performed within a year from the making thereof, (Code, § 1551; Chitty on Con. 67;) yet it was good evidence to explain the holding over, and to show that it was not upon the terms of the original lease. — Chitty on Con. 283, note (q.) It shows that, but is not operative to create any title of tenancy. The other circumstances set forth in the bill of exceptions, which occurred between the making of the new contract and the day in October on which the defendants completed the removal of their drugs. &c., from the store, very plainly show, that the holding over [419]*419was really not upon the terms of the original lease. In fact, it is clear from all the evidence, (if it is believed,) that after the expiration of the original lease, the defendants did not hold under any valid express agreement, nor upon the terms of the original lease; that they were in by no title of tenancy whatever, but held at the will of the plaintiff, in the strictest sense of the word; and that he, on any day after the termination of the original lease, whilst they continued in possession, might, by a demand of possession, have determined the will, and thereupon have instituted against them what the Code calls “a real action,” in which he could have recovered, not only the store itself, but damages “for the possession, or use and occupation,” “ to the time of the verdict.” — Code, § 2207; Doe, ex dem. Hollingsworth v. Stennett, 2 Esp. 717; Goodtitle v. Herbert, 4 Term R. 680; Doe, ex dem. Bastow v. Cox, 11 Ad. & Ellis, N. S. 122.
It may be true, that if at any time after the holding over commenced, and before it terminated, the plaintiff had received from the defendants rent, as rent, for any portion of that time, or had done any other act, which, in law, would have amounted on his part to such a recognition of the defendants as his tenants, as to have precluded him from recovering against them in such a “real action” as we have above mentioned, then he might, in such an action as the present, treat them as tenants from year to year. Dut nothing of that kind appears to have been done; and we need not therefore now decide what its effect would have been, if it had been done. — See Chitty on Con. 287, and other authorities cited, supra. In the absence of any thing of that kind, the defendants could not, by their mere act, (such as retaining the keys, and offering to rent the store to Nettles,) vest in themselves a term as yearly tenants, nor incur the liabilities of such tenants for rent.
Upon the evidence, (if it be true,) the defendants held, after the expiration of the original lease, as tenants at will, and had the right to determine their holding by quitting the premises. — Addison on Contracts, (edition of 1857,) 842, 343.
[420]*420If it were conceded that the defendants, after the expiration of the original lease, held as yearly tenants, the concession would be fatal to the present action; because, upon that concession, the suit was commenced, and the complaint filed, before the expiration of the year, and before any rent could have been considered as due for that year.
As the case for the plaintiff is now presented by the evidence, it rests only upon “a principle resulting from the nature of an action for use and occupation, (and sanctioned by section 2206 of the Code,) namely, that he who holds my premises, without an express bargain, agrees to pay what a jury may find the occupation to be worth.” Mayor of Thetford v. Tyler, supra; Addison on Con. 371; Abeel v. Radcliff, 15 Johns. B. 507. “An actual personal occupation is not necessary to sustain the action, when the lessee (that is, a tenant for a term under an agreement) has entered and taken possession, and the term has become vested in him, as he ‘holds’ within the words of the statute, (Code, § 2206,) although he does not occupy.” For, as against such a tenant, who has once entered, and become vested with the term, a recovery of the rent for the entire term may be had, without ariy other proof of use and occupation than such entry by him, although it may appear that he afterwards quitted the premises long before his term expired. — Addison on Con. 371, and note (i,) referring to Baker v. Holtpzaffel, 4 Taunton, 45, and other cases. But, as against a mere tenant at will, who has no term vested in him, who has made no express agreement, who had the right to determine his holding by quitting the premises, and who has exercised that right, the owner of the premises can not recover more than the actual occupation was worth, in an action for use and occupation; although, if he had elected, during the occupation, to have brought a “real action,” he might, in it, have recovered damages for the use and occupation to the time of the verdict.
But, if it were conceded that the holding over of the defendants was as tenants from year to year, and that the yearly term had become vested in them; still it is clear that the said term could lawfully be created, and was [421]*421created, without writing.' It might, therefore, be terminated without writing. — Addison on Con. 386. There was no stipulation, or agreement, that the store should not be used as a grocery-store, nor that it should not be sub-let. The tenants had, therefore, the right to sub-let it as a grocery-store, and to the quiet enjoyment of the store, either by personal occupation, or by the exercise of that right; and any interference by the landlord, which deprived them of the right of enjoyment of the store to the full extent secured to them under the lease, would authorize the tenants to abandon the premises, and thereby exonerate themselves from the liability to pay rent imposed upon them by the contract. But, if they failed to abandon within a reasonable time, or did any act inconsistent with the right to abandon, they would thereby waive that right. — Dyett v.
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BICE, C. J.
— The most important question for consideration is, on wbat terms shall t|je defendants be considered as bolding after the expiration of the first lease.
If there was no evidence explanatory of the holding over after the expiration of that lease, the case would be a plain one for the plaintiff. For it is a settled rule, that where a party, having held under a lease for a year, at a certain rent, continues to occupy after the expiration of his term, it is presumed, if there be no evidence to the contrary, that he holds for the time, and on the terms of the original lease. But here we have evidence to the contrary; and in a case like the present, “the terms on which he continues to occupy are matter of evidence, rather than of law.” — Mayor of Thetford v. Tyler, 8 Ad. & Ellis, (N. S.) 95 ; Chitty on Contracts, (edition of 1851,) 287, and authorities cited in note (m;) Biller v. Boberts, 13 Serg. & Bawle, 60.
Here it appears that, not long before the expiration of the original lease, the parties made a new 'contract for a second year, to commence from the 1st day of October, 1854. The new contract was materially different from the original lease, in this, that the new contract does not, like the original lease, provide for quarterly payments. The law is, that rent from a yearly tenant is payable yearly, unless otherwise agreed. — Chitty on Contracts, 284, note (t.) The new contract, thus made, and thus differing from the original lease, destroys the implication of the renewal of the original lease, from an unexplained holding over. That new contract is void as alease by the statute of frauds, because it was verbal, and was not to be performed within a year from the making thereof, (Code, § 1551; Chitty on Con. 67;) yet it was good evidence to explain the holding over, and to show that it was not upon the terms of the original lease. — Chitty on Con. 283, note (q.) It shows that, but is not operative to create any title of tenancy. The other circumstances set forth in the bill of exceptions, which occurred between the making of the new contract and the day in October on which the defendants completed the removal of their drugs. &c., from the store, very plainly show, that the holding over [419]*419was really not upon the terms of the original lease. In fact, it is clear from all the evidence, (if it is believed,) that after the expiration of the original lease, the defendants did not hold under any valid express agreement, nor upon the terms of the original lease; that they were in by no title of tenancy whatever, but held at the will of the plaintiff, in the strictest sense of the word; and that he, on any day after the termination of the original lease, whilst they continued in possession, might, by a demand of possession, have determined the will, and thereupon have instituted against them what the Code calls “a real action,” in which he could have recovered, not only the store itself, but damages “for the possession, or use and occupation,” “ to the time of the verdict.” — Code, § 2207; Doe, ex dem. Hollingsworth v. Stennett, 2 Esp. 717; Goodtitle v. Herbert, 4 Term R. 680; Doe, ex dem. Bastow v. Cox, 11 Ad. & Ellis, N. S. 122.
It may be true, that if at any time after the holding over commenced, and before it terminated, the plaintiff had received from the defendants rent, as rent, for any portion of that time, or had done any other act, which, in law, would have amounted on his part to such a recognition of the defendants as his tenants, as to have precluded him from recovering against them in such a “real action” as we have above mentioned, then he might, in such an action as the present, treat them as tenants from year to year. Dut nothing of that kind appears to have been done; and we need not therefore now decide what its effect would have been, if it had been done. — See Chitty on Con. 287, and other authorities cited, supra. In the absence of any thing of that kind, the defendants could not, by their mere act, (such as retaining the keys, and offering to rent the store to Nettles,) vest in themselves a term as yearly tenants, nor incur the liabilities of such tenants for rent.
Upon the evidence, (if it be true,) the defendants held, after the expiration of the original lease, as tenants at will, and had the right to determine their holding by quitting the premises. — Addison on Contracts, (edition of 1857,) 842, 343.
[420]*420If it were conceded that the defendants, after the expiration of the original lease, held as yearly tenants, the concession would be fatal to the present action; because, upon that concession, the suit was commenced, and the complaint filed, before the expiration of the year, and before any rent could have been considered as due for that year.
As the case for the plaintiff is now presented by the evidence, it rests only upon “a principle resulting from the nature of an action for use and occupation, (and sanctioned by section 2206 of the Code,) namely, that he who holds my premises, without an express bargain, agrees to pay what a jury may find the occupation to be worth.” Mayor of Thetford v. Tyler, supra; Addison on Con. 371; Abeel v. Radcliff, 15 Johns. B. 507. “An actual personal occupation is not necessary to sustain the action, when the lessee (that is, a tenant for a term under an agreement) has entered and taken possession, and the term has become vested in him, as he ‘holds’ within the words of the statute, (Code, § 2206,) although he does not occupy.” For, as against such a tenant, who has once entered, and become vested with the term, a recovery of the rent for the entire term may be had, without ariy other proof of use and occupation than such entry by him, although it may appear that he afterwards quitted the premises long before his term expired. — Addison on Con. 371, and note (i,) referring to Baker v. Holtpzaffel, 4 Taunton, 45, and other cases. But, as against a mere tenant at will, who has no term vested in him, who has made no express agreement, who had the right to determine his holding by quitting the premises, and who has exercised that right, the owner of the premises can not recover more than the actual occupation was worth, in an action for use and occupation; although, if he had elected, during the occupation, to have brought a “real action,” he might, in it, have recovered damages for the use and occupation to the time of the verdict.
But, if it were conceded that the holding over of the defendants was as tenants from year to year, and that the yearly term had become vested in them; still it is clear that the said term could lawfully be created, and was [421]*421created, without writing.' It might, therefore, be terminated without writing. — Addison on Con. 386. There was no stipulation, or agreement, that the store should not be used as a grocery-store, nor that it should not be sub-let. The tenants had, therefore, the right to sub-let it as a grocery-store, and to the quiet enjoyment of the store, either by personal occupation, or by the exercise of that right; and any interference by the landlord, which deprived them of the right of enjoyment of the store to the full extent secured to them under the lease, would authorize the tenants to abandon the premises, and thereby exonerate themselves from the liability to pay rent imposed upon them by the contract. But, if they failed to abandon within a reasonable time, or did any act inconsistent with the right to abandon, they would thereby waive that right. — Dyett v. Pendleton, 8 Cowen, 727 ; Lawrence v. French, 25 Wend. 443; Jackson v. Eddy, 12 Missouri Rep. 209; Burn v. Phelps, 1 Starkie’s R. 94; 6 T. R. 458; Edwards v. Etherington, Ryan & Moody, 268.
Under the views above presented, it is certain that the 4th charge of the court could not have injured the plaintiff in this action. Construing that charge in connection with the evidence, we understand “the lease” which it mentions, to be the verbal lease which we have above declared void. As that lease was void by the statute of frauds, and the defendants had the right to treat it as a void lease,.the plaintiff could not have been injured, but might have been benefited, by the instruction which made the right of the defendants to terminate it dependent on the interference of the plaintiff" and their offer to give back the store. That lease did not vest any term in the defendants. And as we understand that charge to relate only to it, we cannot say that there was any error in that part of it, which limited the recovery of “ the rent ” to “ the time that defendants were actually in possession of said store.” If retain-, ing the keys, and offering to rent to Nettles, amount to a continuation of the holding of the store by the defendants, (as to which we do not decide,) they amount to a continu[422]*422ation of the actual possession of tbe store, and would, therefore, have been embraced in the charge as given.
The 1st charge asked was given. The 2d was abstract; and, therefore, there was no error in refusing it, even if otherwise unobjectionable. The 3d, 4th and 5th assume that the plaintiff had made out at least a prima-facie case, and must recover unless defeated by the matters stated in them respectively. That assumption alone authorised their refusal, even if in all other respects they were faultless. There never is error in refusing a charge, which is not, in every particular, authorized by the law and justified by the evidence in the particular case. — Carmichael v. Brooks, 9 Porter, 330.
We find no reversible error in this case, and must affirm the judgment.