| Pa. | Feb 3, 1879
delivered the opinion of the court, February 3d 1879.
Undoubtedly the court below was right in submitting to the consideration of the jury, the question whether Bush was occupying the premises in controversy at the sufferance of the Refining Company or as a trespasser merely. If, indeed, as was said in the case between these same parties, reported in 5 W. N. C. 143, the defendant was’ permitted to remain in the possession of the property, and he did so remain until the plaintiff elected by its writ of ejectment, or otherwise, to regard him as a trespasser, up to that time, it might recover from him the worth of the premises, by the action of assumpsit for use and occupation; but from the time the company made its election to. treat him as a trespasser, it could no longer recover from him on the ground of an implied contract; for, the landlord, having thus determined the status of the occupant, there is no room left to presume a contract. It is true, indeed, that in the first place, the tenant cannot shelter himself under such a plea, for it is not for him, but the landord, to say in what light he shall be regarded, whether as tenant or trespasser; whether the tort shall be waived or not; but when the landlord has once determined this question, the matter is settled, and he must abide by his own decision.. It is upon this ground that the case of Goddard v. Hall, 55 Me. 579" court="Me." date_filed="1868-07-01" href="https://app.midpage.ai/document/goddard-v-hall-4931748?utm_source=webapp" opinion_id="4931748">55 Maine 579, is put. It was there held, that an action for use and occupation could not be maintained against a disseisor, and that a judgment upon a writ of entry negatived the relation of landlord and tenant. Of like force is the case of Featherstonhaugh v. Bradshaw, 1 Wend. 134" court="N.Y. Sup. Ct." date_filed="1828-08-15" href="https://app.midpage.ai/document/featherstonhaugh-v-bradshaw-5512897?utm_source=webapp" opinion_id="5512897">1 Wend. 134, which rules that assumpsit will not lie after proceedings to obtain possession, under the statute against a tenant holding over, it appearing by the plaintiff’s afiidavit, that the holding over was without his assent or permission, hence, his assent could not be implied in the face of his oath to the contrary. And it is therein taken as indisputable, per Sutherland, J.', that the action of assumpsit will not lie to recover rent accruing subsequently to the demise laid in a declaration in ejectment. These cases illustrate what we have already said, that the action depends upon the landlord’s assent, express or implied, to the tenant’s use of the premises, and his election to treat the occupant as a disseisor negatives such assent.
When, therefore, the Refining Company, through its agent, following up its two previous notices, informs Bush, on the 8th day of January, liis holding over having then already commenced, that he was but a trespasser, and that he would be held for damages
Nevertheless, whilst this is so — whilst we agree that the question, as to whether Bush was or was not a trespasser, was one calling for the consideration of a jury, yet we cannot but think that the court was wrong in this, that it charged, inter alia, “But in this case you find a notice to quit of October 16th 1874, and that is followed up by two letters, addressing him, and regarding him as a trespasser; and there is no evidence that after that the plaintiffs’ assented to his remaining.” It does not follow that, notwithstand-, ing the three several notices and the threat to treat him as a trespasser, the company did not, after all, permit him to remain on the l premises pending the negotiations for a new lease. That he did| hold over, and that the plaintiff' did not institute adversary process, j immediately after the last notice, are some evidence that he was ;¡ there holding at sufferance. Then the fact that negotiations for a * new lease were pending between the parties, especially if taken in connection with the letter of Mr. Schick, the attorney of Bush, is well nigh conclusive of the fact that he remained in possession of the property by permission, and not as a disseisor.
Besides it was error to set the jury upon a hunt after a new con- > tract of lease; such contract was not necessary to the maintenance i of the action; it is not necessarily founded upon a specific contract, 1 written or oral, but upon the use of the premises. The occupant ; may be in fact a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit, and it does not lie with the tortfeasor to defeat him by interposing his own wrong. To tell the jury, therefore, that they must find some new contract between the parties, in order to rebut the presumption arising from the notices, was error, for that presumption might well be rebutted by the subsequent acts of those parties.
- The judgment is reversed, and a venire facias de novo ordered.