delivered the opinion of the Court:
The main question in this case arises upon the plaintiff’s instructions.
Three instructions were given for plaintiff in the county court, all of which contained substantially the same proposition of law, which is stated in _ a general way in the third instruction, and is as follows:
“ The jury are instructed, as matter of law, that where a tenant occupies premises under a lease, for a year or years,, and holds over after the expiration of such lease, without, having made any new agreement with the landlord, under which such holding over takes place, that then the tenant may, at the election of the landlord, be treated as tenant for another year, upon the terms of the original lease.”
*159The position whioh’seems to be taken by counsel for plaintiff in error is, that it is for the jury, and not the court, to determine whether the holding over amounts to a new tenancy, and that in determining this question the jury are to consider the intention of the tenant, and whether there was an assent on his part. If such were the rule, then the instruction in question would be clearly erroneous, as it is evident there was no assent and intention on the part of the tenant to hold for another year at the same rent. We do not regard such to be the rule of law, as derived from the authorities, but that this is one among the cases where a person may be charged, as upon a contract, without his assent, and contrary to his intention to make the contract.
In Taylor’s Landlord and Tenant, 7th ed. § 22, the rule is thus laid down: “ A tenant for years who holds over after the expiration of his term without paying rent or otherwise acknowledging a continuance of the tenancy, becomes either a trespasser, or a tenant at the option of the landlord. ; "Very slight acts on the part of the landlord, or a short lapse of time, are sufficient to conclude his election and make the occupant his tenant. But the tenant has no such election; his mere continuance in possession fixes him as tenant for another year, if the landlord thinks proper to insist upon it. And the right of the landlord to continue the tenancy will not be affected by the fact that the tenant refused to renew the lease, and gave notice that he had hired other premises.”
It is noticeable that in the 5th edition of this work, in the same section 22, the author states, as seeming to be the sounder doctrine, “that the tenant holding over, and being therefore at sufferance, while he may become a trespasser by the landlord’s entry, can only be a tenant by mutual agreement.”
But in the 7th edition, in this same section, this doctrine as to mutual agreement appears to be confined to those jurisdictions where tenancies from year to year are unknown; it being there said: “In Massachusetts and in some of the other Mew *160England States, where tenancies front year to year are unknown, a tenant holding over is said to be in merely bjr sufferance. He remains a trespasser, and can only become a tenant by mutual agreement.”
The doctrine of implied tenancies from year to year, upon a holding over, is distinctly recognized in this State. Sunt v. Morton, 18 Ill. 75; Prickett v. Ritter, 16 id. 96, and other cases.
In Conway v. Starkweather, 1 Denio, 113, there had been a lease of a house for one year, at $300 a year, payable quarterly in advance, the lease expiring May 1, 1842. The tenant held over until the 14th of May, on which day the landlords distrained\for a quarter’s rent. At the trial in the court below, the tenant offered to show that the landlords, in the latter part of April, proposed to him that if he would stay another year they would reduce the rent to $250, but that the tenant declined the proposition because he had already leased another house; also, that the landlords again proposed that if the tenant would remain they would reduce the rent to $250, and allow him to expend $50 of it on the premises, which proposition he declined for the same reason. The evidence was excluded. The Supreme Court fully affirmed the doctrine as above laid down by Taylor, and in answer to the claim of counsel in the case that the holding over was only presumptive evidence of the continuance of the tenancy, which would have been sufficiently rebutted by the offered proof, the court dissented from such view, saying it was not a case for balancing presumptions, but one where the act of the tenant in holding over had given the landlords a legal right to treat him as tenant, and that it was not in his power to throw off that character, however onerous it might be, and held the offered evidence to have been properly rejected, and that the distress was rightfully made.
This question was elaborately considered in the late case of Schuyler v. Smith, 51 N. Y. 309. There had been a lease of a dock and premises, which expired May 1, 1864. In *161'March, 1864, the landlord notified the tenants that if they desired to remain another year, he would increase his rent $100, and thereupon the tenants gave notice to the landlord that they would not keep his wharf after May 1, 1864, and proceeded to hire another wharf, of which the landlord had notice. But on the 1st of May, their new Avharf not being in a condition for landing boats, they continued to make a partial use o.f the former wharf for some twenty days thereafter. The court held the tenants liable for another year’s rent.
In the opinion of the court, after laying it down that the law is too Avell settled to be disputed, that where a tenant holds over after the expiration of his term the laAV will imply an agreement to hold for a year upon the terms of a prior lease, in reply to the defendants’ claim there, as in this case, that this implication of laAV might be rebutted, and that the tenants might show by proof that they did not intend to hold upon the same terms as the prior lease, it is observed, that the law sometimes steps in and makes agreements for parties which they did not mutually intend, instancing the cases of a wrong-doer converting the personal property,of another, intending never to pay him for it, where he may be sued in trover, or as upon a sale upon an implied promise to pay, or of one receiving the money of another not intending to pay him; yet he may be sued for money had and received, upon an implied promise to pay — in neither of Avhieh cases would the Avrong-doer have the option to determine whether he should be sued in tort or upon contract. So in that case, the defendants held over wrongfully, and the law should not give them the option to determine whether they should be treated as trespassers or tenants. íhat if the argument as to the necessity of mutuality and consent of both parties was sound, then a tenant might hold over an entire year, and give notice at its commencement that he Avould not pay as much rent as stipulated in the prior lease, and then claim at the end of the year that he was not liable *162to pay the rent because he did not assent. That in such case, no matter what objection the tenant made, so long as the landlord did not consent to new terms, he would be bound by the terms of the prior lease.
In Hemphill v. Flynn, 2 Penn. St. 144, the defendant had a lease for a year, and held over for one quarter, when he moved out and tendered the plaintiff, the landlord, one quarter’s rent and the key, which were received without prejudice to the rights of either party. The suit was to recover for the residue of the year, and the defendant was held liable. It was said, that both upon reason and authority, where the lease was for a definite period, and the tenant holds over, the landlord has the option to treat him as tenant for another year, under the same terms as the former lease, so far as applicable; that the tenant knows the time when his lease will determine; that it is his duty to move out by that time, and surrender the premises to the landlord ; that if he do not remove, the landlord may be materially injured; that he is prevented from providing another tenant, and is'ijeft at the mercy of one who stays or goes, as it suits him - that it is but just that the landlord should be at liberty to consider the tenant’s remaining as an assent on his part to continue, and that such an agreement is implied by the law in that case.
In Ames v. Schuesler, 14 Ala. 600, a tenant holding over for about a month was held liable for the year’s rent. The court held the rule above declared to be ivell settled, and that the charge of the court below was wrong in that the jury might have inferred from it “ that the intention of the defendants to hold for another year, at the rate at which they had rented the previous year, was necessary to fix a liability upon them, whereas the law fixed their liability from the fact of holding over, independent of their intention.”
The later case of Crommelin v. Theiss & Co. 31 Ala. 412, is cited by counsel for plaintiff in error as overruling that of Ames v. Sehuesler, upon the point of the law fixing the lia*163bility of the tenant from the fact of holding over, independently of his intention.
We do not understand the later case as going to such extent. In that case, some time before the expiration of the first year’s lease, the parties entered into a new contract, materially different from the original lease, for the lease of the premises for another year. The new contract being verbal, was void under the Statute of Frauds;’"yet it was held to be good evidence to explain the holding over after the expiration of the first year, and to show that it was not upon the terms of the original lease. That would show the intention of both the parties in that respect, and would be consistent with the general rule as above stated. Of course that is not to prevail against the contrary intention manifested by the acts of both the parties, — landlord as well as tenant. See, further, as to such general rule, Noel v. McCrory, 7 Coldw. 354, and Bacon v. Brown, 9 Conn. 334.
There are English cases referred to which would seem to be somewhat variant from the above doctrine; but without stopping to consider them particularly, we are satisfied that the general rule, as declared in the cases above cited, is the one,established by the current of American decisions. Cases referred to by counsel, in Maine, Hew Hampshire and Massachusetts, as being in opposition to such rule, we do not regard as properly applying, in view of the different law in those States as to tenancies from year to year, i! In addition to the statement in the citation above from Taylor’s Landlord and Tenant, that in Massachusetts and some of the other Hew England States tenancies from year to year are unknown, we understand that in the three States named above it is provided by statute that all leases not in writing shall be effectual to create estates at will only.
We perceive nothing in our own decisions cited by counsel for plaintiff in error inconsistent with the view we here adopt. One of the cases cited, Griffin v. Knisely, 75 Ill. 411, is certainly adverse to the position of plaintiff in error, that the *164legal implication resulting from the holding over of premises may be repelled by the intent on the part of the tenant. There was a written lease in that case, from May 1, 1871, to May 1, 1872, at a fixed rent. Before the expiration of the term the parties verbally agreed to execute a written lease for another year, at a price-fixed, but the lessee refused to sign the lease when presented to him, and the landlord withdrew the proposition. '• The landlord then notified the tenant that if he held over he must pay an advanced rate named. The tenant then signed the written lease, and the question was, whether the holding over was under the old lease or the advanced price. It was held that it was at the advanced price, and the tenant was charged therefor as upon an agreement to pay it, although he did not assent to the payment of the advanced price, and it was most clearly his intention not to pay it.
We do not say that the legal presumption arising from the holding over of premises of a tenancy from year to year, upon the terms of the original lease, may not be rebutted. And the question arising upon the instruction here, is not whether it is correct as an abstract proposition of law, but whether the instruction was proper as applied to the evidence in this case. However the holding over until the 4th of January might be considered affected, under the testimony of the witness Waters, as being in view of pending negotiations for a reduced rent, there can be no pretence of anything of that kind after that time. At that day anything in the way of .such negotiation had certainly come to an end, and the company had been distinctly notified that they would be held liable for the former rent, and for a year.
Their holding over afterward, for the space of time they did, was wrongful, and, under the1 authorities, as we regard, gave to the landlords the right to treat the company as a tenant for another year, upon the terms of the prior lease. The landlords had most distinctly declared their intention to do so.
*165The facts and circumstances show, undoubtedly, that the company did not intend to become a tenant for another year at the former rent. But the legal presumption, from the holding over, of a renewal of the tenancy can not be rebutted, as shown by the authorities, by proof of a contrary intention on the part of the tenant alone. As, then, as respects at least the holding over after the 4th of January, there was no evidence in the case tending to rebut the legal presumption from the holding over, of a new tenancy upon the old terms, more than the non-assent and contrary intention alone of the tenant —which is held not to be sufficient — it can not be said that the instructions, as applied to the evidence, were erroneous.
Furthermore, the county court gave the following full instructions upon the subject, for the defendant':
“ The jury are instructed, that although, as a general rule, the law, by implication, creates a new tenancy for a year, and from year to year, where the tenant holds possession of the premises after the expiration of lease' for a year, or for years, under which he went into possession, that such implication is not conclusive, but may be rebutted by the acts of the parties; and that it is a question of fact for the jury to determine, under the instructions of the court, whether or not the holding over is such as to create a new tenancy; and if the jury in this case believe, from the evidence, that the holding over by the defendant after the expiration of its lease or leases with the plaintiffs — if they find it did so hold over— was under such a state of facts as to rebut the implication of the creation of a new tenancy, then the law is for the defendant upon this point.”
“ If the jury believe, from the evidence, that the defendant remained in possession of the premises in controversy after the termination of its lease or leases with the plaintiffs, with the understanding and agreement between the said parties, either expressed Oor implied, that such holding over should not operate as a renewal of said lease or leases, then their verdict should be for the defendant.”
*166We do not think there is any just ground of complaint in the giving of the law of the case to the jury.
The court modified the first of the last two instructions by inserting the concluding words, in italics, in place of the words, “their verdict should be for the defendant,” which were in the instruction as asked by the defendant, and were stricken out by the court. Of this modification plaintiff in error complains. There were only two-counts in the declaration, counting upon the two leases and the liability from the holding over. In view of the issues, we perceive nothing material in the change of the instruction which should have prejudiced the defendants.
Objection is taken to the declaration as insufficient, because the election or assent of the landlords to the alleged tenancy is not averred.
The declaration, after averring the making of the original leases, the occupation and holding over, the continuance by reason thereof of the tenancy for another year at the same rent, avers, that by means of the premises the defendants became liable to pay the sum demanded as rent, and being so liable promised the plaintiffs to pay them such sum on request. The election and assent of the Gardners is shown by the bringing of the suit itself. Besides, the alleged defect, if it were such, would be such an one, we think, as would be cured by the verdict.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Walkee, J.: I do not concur in all of the reasoning in this opinion.