Mr. Justice Gordon
delivered the opinion of the court,
This case, though apparently complex, involves a very simple proposition. The defendant, John K. Barclay, for some ten years before the bringing of the present action, occupied in whole or in part, the premises of the plaintiffs for his own use and purposes, and the question now is whether he can be made to pay for them. The court below- thought not; we are of a different opinion. In the outstart we may observe, that the case of Barclay’s Appeal, 12 Norris,' 50, has no application to the matter in hand; nothing was there determined but that Grove’s remedy, whatever it might be, was not in equity. As to the ease in hand, if the facts as stated in the charge of the learned Judge, who directed the trial below, are to be taken as proved, the plaintiffs ought to have had a verdict had those facts been properly submitted, nor would it matter whether such verdict was rendered upon a count in assumpsit or in case, and in order to provide for an alternative of this kind the amendment proposed by the plaintiffs ought to have been *164allowed: McClosky v. Miller, 22 P. E. S., 151. The facts were for the jury, and they might have found for the plaintiffs on either of the three following grounds; for the use and occupation of the premises; on an implied contract for storage, or for an obstruction of the plaintiffs’ use of the property by an unwarrantable persistence by the defendant in the possession of it without right. An implied contract for use and occupation may arise from the use of the premises by the tenant, and the sufferance of the landlord, nor does the fact that the tenant holds over after notice to quit tend to destroy this implication, unless the landlord has followed up the notice by some act indicative of an intent to treat him as a trespasser: National Oil Refining Co. v. Bush, 7 Norris, 885; and see also opinion of Judge Brewster, affirmed in Stockton’s Appeal, 14 P. F. S., 58. On the question of an implied contract for storage, the court below admitted that such contract might fairly be implied as to the occupancy prior to the correspondence of December, 1873, but not after that time. But we cannot see how the actual status of the parties was altered by that correspondence. It is true, Grove required the vacation of the premises by the. removal of the machinery, but Barclay refused to comply with that request, hence, the occupancy continued precisely as it was before. So Grove might, in' relief of his property, have removed the machinery, but h'e elected, as he had a right to do, to let it remain where it was, and thus the original condition of affairs continued as it had been before the correspondence. Having thus a continuation of precisely the same circumstances after the notice as those which had previously raised the implication of a contract, it is impossible to see why that implication should not also be continued. Nor does the defendant’s claim of right to the occupancy of the premises help him in his attempted avoidance of his implied contract to pay for their use unless he can prove that the claim thus made is substantial, for if the contrary were held, then might every such contract be defeated by the interposition of a fictitious claim of right in or to the subject matter of it.
The judgment of the court below is reversed and a new venire ordered.