Mellen C. J.
This is an action of assumpsit for the use and occupation of eight days in a certain saw mill, in Biddeford. The writ contains also a count for money had and received. From the facts reported we are satisfied that the evidence of the plaintiff’s ownership, as alleged, is sufficient. The only question, *172as to the first count, is whether the defendants did occupy and hold under the plaintiff, as he has alleged: or, in other words, whether the relation of landlord and tenant subsisted between him and them, during any part of the period mentioned. To maintain an action for use and occupation there must be proof of a promise express or implied. Little v. Libbey, 2 Greenl. 242; Wyman v. Hook, Ib. 335. The question whether there was any such promise, was properly submitted to the jury, and by their verdict they have found that there was no such promise. It appears from the plaintiff’s own witness, that when he demanded of the defendants, possession of the eight days which are in question, they expressly declared that they held and occupied the same under the proprietors of the mill, for the purpose of obtaining a reimbursement of the amount expended by the proprietors in rebuilding the plaintiff’s share of the mill: that they, the defendants, also declared that they would not surrender to him the possession of his part of the mill till such reimbursement should be realized, but that they would surrender the same to the plaintiff, as soon as it should be so realized and obtained : and the same was accordingly so surrendered to him some time before this action was commenced, and he took possession of it, and it is admitted that he has since occupied it. Thus, instead of acknowledging a tenancy under the plaintiff, during their occupation, the defendants expressly denied it, and held in defiance of his claim and demand of possession. Under such circumstances, we are satisfied that the action cannot be maintained on the first count. It is true, that there is no proof that any regular proceedings were ever had by the proprietors under the 12th and 13th sections of ch. 45, of the statute for the regulation of mills; or that the defendants were appointed as a committee of the proprietors: still they claimed to act as such, and did exclude the plaintiff and hold and occupy the plaintiff’s mill, adversely to his claim and rights as owner, for the period and purposes before mentioned. We think the instruction of the Judge Was correct, as to the legal presumption when one tenant in common occupies the whole of a piece of real property ; but that presumption may always be rebutted by evidence, as it was in the present case. No complaint is made of the instructions of the Judge; and by *173the terms of the report, if the instructions were correct, judgment was to be entered on the verdict. On these grounds the verdict ought to be sustained. But at the argument (though not at the trial before the jury) it was contended, that the plaintiff was entitled to recover on the second count, for money had and received. On this point the only proof is the occupation of the eight days, and the receipt of the income of the same during such occupation, by way of reimbursing them the amount expended in rebuilding the plaintiff’s part of the mill; — they have received no more than they expended; at least it does not appear that they have received any more. It is true that what they expended was for the plaintiff’s essential advantage, though it was so expended without his previous promise of payment or assent: but he has taken possession of the mill and occupied it, which operates as a ratification of what they had done. The defendants built his share of the mill, and he has accepted it and availed himself of all the advantages of their labor and expenditures, and thus a promise of payment was by law implied ; and the defendants have, by receiving the income to the amount of the expenditure, availed themselves of the benefit of that promise, and thus balanced the account. We do not mean in this opinion to say, that if the defendants expended more than was necessary or proper in rebuilding the plaintiff’s share, or received from the income of the same more than was expended, it may not be recovered:— but the case before us discloses no facts which have a tendency to shew any balance in the defendants’ hands. The witness of the plaintiff proved that the defendants claimed no more than they had expended, and surrendered the possession of the mill to the plaintiff, when they had received it.
Judgment on the verdict.