The opinion of the Court was drawn up by
The defendant made a verbal contract with the plaintiff for the purchase of certain real estate, and, with his permission, went into the occupation thereof. Neither party was liable to the other for not performing his part of this contract.
After remaining in possession two years, the defendant voluntarily abandoned the premises; and the plaintiff has brought this action of assumpsit for the use and occupation thereof.
There was no agreement on the part of the defendant to pay rent. And if he had been ready to pay for the place, and the plaintiff had refused to convey it to him, he would not be liable for the use and occupation of it. But he sustained the relation to the plaintiff of tenant at will; and the plaintiff was ready to convey the premises to him, but he neglected to pay therefor. The occupation was beneficial to him; and, in order to do justice between the parties, the law will imply a promise on his part, when he took possession, in case he should fail to fulfil his part of the contract, to pay for the use of the premises. The defendant must therefore be defaulted, to be heard in damages.