Bleckley, Chief Justice.
The contract of June 4, 1889, signed by the parties respectively, a copy of which is in the report, was not a present demise or lease which granted to Lindsay & Morgan an immediate estate for years, but was an agreement to give them a future lease for ten years from the time the building to be erected was “ready for occupation.” It is plain from the nature of the agreement and the'language of the instrument that the contract was exeeutoiy on both sides. It was not contemplated that Lindsay & Morgan should become tenants to Weed, or owners of any interest in the premises, or that they should be liable for the payment of the stipulated rent, if Weed did not erect the building and make it ready for occupation. Until that time should arrive, they were to remain without any interest in the property whatever. If the building, as they contend, has not yet been completed and made ready for occupation according to the agreement, the time appointed for an interest to vest in them as lessees, and for their occupation to commence, has not yet arrived; and so they are without any legal ownership of an estate for years, or of a right to possession by virtue of such ownership. The instrument executed as evidence - of the contract contains no words of present demise or any equivalent terms, nor does it fix with certainty either the amount of the annual rent to be paid, or appoint anytime for the completion of the building and the consequent commencement of the ten years term. The amount of the rent was to, or might, depend in part upon the cost of [693] the building, and when the building would be ready for occupation would necessarily depend on contingencies to be met and dealt with after the agreement was signed. It is manifest that the words, “Upon these conditions, Joseph D. Weed agrees to give them a lease for ten years from the date the building is ready for occupation,” ought 'to be construed, not as a stipulation for further assurance, but as ah undertaking to create a lease not previously existing, and to pass by it an estate not before conveyed nor attempted to be conveyed. It could not have been the intention of the parties either that Lindsay & Morgan should be owners of the contemplated term of years, or any term in the premises, before the annual rent which they were to pay began to accrue, or that This rent was to begin to accrue before the building was ready for occupation. In distinguishing between a lease and a mere executory agreement for a lease, the intention of the parties, as manifested by the writing, is a controlling element. Lloyd, Law of Building and Buildings, §88; 12 Am. & Eng. Enc. of Law, 980; 1 Wood, Land. and Ten. §179; McAdam, Land. and Ten. §41; 1 Taylor, Land, and Ten. §37 el seq.; 6 Lawson, Rights, Rem. and Pr. §2801. For cases illustrating the distinction, see: Sturgion v. Painter, Noy’s Rep. 128; Jackson v. Ashburner, 5 Term Rep. 163; Hegan v. Johnson, 2 Taunt. 148; Jackson v. Bulkley, 2 Wend. 433; People v. Kelsey, 38 Barb. 269, 14 Abb. Pr. 372; McGrath v. City of Boston, 103 Mass. 369; Adams v. Hagger, L. R. 4 Q. B. Div. 480; Jackson v. Kisselbrack, 10 Johns. 336; Kabley v. Worcester Gas Light Co., 102 Mass. 392.
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Bleckley, Chief Justice.
The contract of June 4, 1889, signed by the parties respectively, a copy of which is in the report, was not a present demise or lease which granted to Lindsay & Morgan an immediate estate for years, but was an agreement to give them a future lease for ten years from the time the building to be erected was “ready for occupation.” It is plain from the nature of the agreement and the'language of the instrument that the contract was exeeutoiy on both sides. It was not contemplated that Lindsay & Morgan should become tenants to Weed, or owners of any interest in the premises, or that they should be liable for the payment of the stipulated rent, if Weed did not erect the building and make it ready for occupation. Until that time should arrive, they were to remain without any interest in the property whatever. If the building, as they contend, has not yet been completed and made ready for occupation according to the agreement, the time appointed for an interest to vest in them as lessees, and for their occupation to commence, has not yet arrived; and so they are without any legal ownership of an estate for years, or of a right to possession by virtue of such ownership. The instrument executed as evidence - of the contract contains no words of present demise or any equivalent terms, nor does it fix with certainty either the amount of the annual rent to be paid, or appoint anytime for the completion of the building and the consequent commencement of the ten years term. The amount of the rent was to, or might, depend in part upon the cost of [693] the building, and when the building would be ready for occupation would necessarily depend on contingencies to be met and dealt with after the agreement was signed. It is manifest that the words, “Upon these conditions, Joseph D. Weed agrees to give them a lease for ten years from the date the building is ready for occupation,” ought 'to be construed, not as a stipulation for further assurance, but as ah undertaking to create a lease not previously existing, and to pass by it an estate not before conveyed nor attempted to be conveyed. It could not have been the intention of the parties either that Lindsay & Morgan should be owners of the contemplated term of years, or any term in the premises, before the annual rent which they were to pay began to accrue, or that This rent was to begin to accrue before the building was ready for occupation. In distinguishing between a lease and a mere executory agreement for a lease, the intention of the parties, as manifested by the writing, is a controlling element. Lloyd, Law of Building and Buildings, §88; 12 Am. & Eng. Enc. of Law, 980; 1 Wood, Land. and Ten. §179; McAdam, Land. and Ten. §41; 1 Taylor, Land, and Ten. §37 el seq.; 6 Lawson, Rights, Rem. and Pr. §2801. For cases illustrating the distinction, see: Sturgion v. Painter, Noy’s Rep. 128; Jackson v. Ashburner, 5 Term Rep. 163; Hegan v. Johnson, 2 Taunt. 148; Jackson v. Bulkley, 2 Wend. 433; People v. Kelsey, 38 Barb. 269, 14 Abb. Pr. 372; McGrath v. City of Boston, 103 Mass. 369; Adams v. Hagger, L. R. 4 Q. B. Div. 480; Jackson v. Kisselbrack, 10 Johns. 336; Kabley v. Worcester Gas Light Co., 102 Mass. 392.
No lease creating a term of ten years and vesting the same in Lindsay & Morgan having ever come into existence as contemplated by the agreement, what was the effect of admitting them into possession by virtue of the consent given by Weed in his letter to them of Sep tern[694] bei’ 27th, 1889, in which he says, “I simply write to tell you, as Mr. Brown told me yon wished to begin to occupy the building before it was entirely finished, that the rent will begin from the time you begin to occupy it. I have no objection whatever to your moving into the building as soon as you find it can serve your convenience to do so.” (Mr. Brown was- the contractor employed by Weed to construct the building.) Was this permission a license to occupy for ten years without the execution of any lease, or was it, as events turned out (possession having been taken under it and Lindsay & Morgan, having afterwards refused to join in the execution of a lease), the creation of a tenancy at will? We think it was the latter ; and no rent having at any time been paid and accepted, this is in accordance with the current of authority. 1 Taylor, Land. & Ten. §60; 1 Wash. Real Prop. *376; Tied. Real Prop. §216; 6 Lawson, Rights, Rem. & Pr. §2809; 12 Am. & Eng. Enc. of Law, 670; Chapman v. Towner, 6 M. & W. 100; Anderson v. Midland Ry. Co., 3 E. & E. 614; Anderson v. Prindle, 23 Wend. 616; Dunne v. Trustees, 39 Ill. 578. In Hamerton v. Snead, 3 B. &. C. 483, Littledale, J., said: “Where parties enter under a, mere agreement for a future lease, they are tenants at will; and if rent is paid under the agreement, they become tenants from year to year, determinable on the execution of the lease contracted for, that being the primary contract.” Perhaps, as the law of remedy in the superior court now stands, the payment of rent would have raised, not merely a tenancy from year to year, but one for the whole term covered by the lease. Walsh v. Lonsdale, L. R. 21 Ch. Div. 9. It is plain that, consist-' ently with the written agreement of the parties, Lindsay & Morgan would have no right to occupy and use the premises for ten years unless they were willing to pay therefor the stipulated rent, nor unless they were will[695] ing to occupy as lessees and not merely as tenants at will. In this litigation they seek, as they did in some of the preliminary steps which led to it, to take the position and have all the rights of lessees on terms different from any which Weed has ever assented to ; that is, they want to hold at a less annual rent than they have agreed to pay.’ They make this claim because, -as they contend, Weed has not erected and made ready for occupation such a building with respect to plan and finish as was contemplated. If this contention be well founded in fact, the result would be, not that they could occupy for ten years olí terms different from those agreed upon, but that they could, if they did not choose to waive their objection and unite in the lease and pay the stipulated rent, exercise their option between vacating the premises and compelling, by a proper equitable action, a specific performance on the part of Weed of his undertaking. Weed’s violation of his contract would also furnish a cause of action in their favor for any damages resulting from his failure to comply. Perhaps if they had, under protest, paid rent according to the contract, they might have done so without surrendering any substantial right, legal or equitable. Lamare v. Dixon, 6 L. R., H. L., Eng. & Ir. App. 514. When this proceeding was commenced, they had not pursued any course open to them, but had endeavored to pursue one not opeu; they had declined to. join in the lease; had not paid rent at the stipülated rate; had entered no suit for specific performance, and had refused to vacate the premises. Having brought themselves into the position of mere tenants at will, section 2291 of the code applies to them. The two months notice having been given, they were subject to eviction as tenants holding over. Code, §§4077-4081. The pleadings in the ease were simply the affidavit and counter-affidavit provided for by the sections of the code last cited. The pending [696] application in the superior coui't to enjoin the prosecution of this proceeding was not operative, because no injunction, temporary or permanent, had been ordered, nor any restraining order granted.
What we have ruled embraces .all that is fundamental in the case, and effectually controls the final result of this proceeding in the city court. The court erred in not granting a new trial. Judgment reversed.