It seems that the plaintiff accepted and treated the defendants as his tenants, and they intended to become such under the written lease above set forth. That lease terminated on the first day of January, 1890. If it be granted, as contended, that as the defendants continued quietly to occupy the premises next after the written lease expired, the plaintiff might have treated them as his tenafits for the year 1890 upon the same terms as to rent as those specified in the written lease referred to; the continued relation as landlord and tenant would arise only by implication. He was not bound to treat them as his tenants; he might have treated them as trespassers and ejected them; it was *100optional with him whether he would treat them as tenants or not, and he might waive his 'right of option by any act showing his purpose to do so. Taylor on L. & T, § 22.
Then, did the plaintiff waive such right or option in this case?
We concur in the opinion of the Court below that he did. The defendants were merchants doing business in the storehouse of the plaintiff. Their lease was just ended. Shortly after the first of January, and before the defendants had fixed upon their place of business for the year, the plaintiff called upon them to collect the rent then due for December of 1889. ITe and they then had a conversation looking to the lease of the premises for the year 1890. He did not then suggest that they were his tenants for that year — that he so recognized them, or intended to do so, as possibly he had the right to do. On the contrary, distinctly showing-his purpose to make a new contract or lease on his part, he proposed that the rent should be three hundred dollars. The defendants refused to agree to pay that sum. He then offered to take two hundred and seventy-five dollars, and at last two hundred and fifty dollars. The defendants did not accept his offers, but requested him to allow them a few days within which to Consider his proposition to lease, and he allowed the request. The parties separated, but the plaintiff returned the same day and said he wanted an earlier answer. Now, it seems to us obvious that the plaintiff did not treat or regard the defendants as his tenants, and that they did not so regard themselves. Why did the plaintiff offer to lease the premises, and at the reduced rent of two hundred and fifty dollars ? Did he not thereby give the defendants to understand and act upon the fact that he did not recognize or insist upon any implied lease for the year? Nor did he say aught to the contrary until he learned that the defendants had leased other premises. It was too late then for him to insist upon an advantage, if he ever had it, aris*101ing by implication, that he might waive. From his conduct, and what he said, the defendants might reasonably infer and believe that they were not his tenants, or so recognized or treated by him, and that they might look elsewhere, as their interests might suggest, for a suitable store-house, as they did do, without peril as to any liability to him. Ele must justly be held to have waived any such right or option he may possibly have had.
Judgment affirmed.