Gilchrist, J.
The defendant occupied the premises for the use and occupation of which the plaintiff has brought his action; in the first place under a lease for a term of three years, to be computed from the first day of April, 1839, at an annual rent of §200, which he was at liberty to pay by making certain repairs upon the premises, which were indicated in general terms in the indentures, but were not to exceed six hundred dollars.
By a supplemental agreement, which was put in writing, the defendant had authority to execute further improvements, including the erection of a stable and shed, and such other improvements as might be found to be necessary and proper. For these improvements, which were not to exceed four hundred dollars, the lessors, in whose place the plaintiff stands, had the option to pay him at the expiration of his term of three years, or to suffer him to remain in the occupancy of the estate until he should be remunerated by the rent at the rate stipulated in the lease.
In a little more than one year from the expiration of his term, he received notice from the plaintiff that the premises had been conveyed to him, and a request to terminate his occupation of them. The tenant had a right to occupy till the accumulated rent should amount to such sum as he had, consistently with the terms of the contract, expended in repairs and improvements; the lessors not having elected at the expiration of the term of three years to pay him for such improvements, but having suffered him to occupy in conformity with the other alternative provided in the contract. The plaintiff, coming in under the lessors, was bound by their acts, as was decided on a former occasion between these parties. His notice and request to the defendant to give up his possession before such time as the rent should remunerate him for the repairs, was of course of no avail to terminate the occupancy thus prematurely.
It was necessary, however, that the defendant should have notice of the assignment of the reversion, that he might know who was his landlord, before he could be subjected to an action in his behalf for rent or for use and occupation. This notice, it is obvious, might be given as well during the life of the lease as at its expiration, and was a pi’oper notice to give immediately upon receiving the assignment that created the relation of landlord and tenant between him and the defendant.
To guard against the inference of the plaintiff’s assent to extend the term of the defendant’s occupancy for another year, from his tacit acquiescence in a holding over after the expiration of the time provided for by the contract, to be determined by the expense or value of the repairs, it was proper for the plaintiff to give notice that he should require the premises to be surrendered at the expiration of that time; for if the tenancy was renewed, the same rent and the same terms of half-yearly payment would be revived, by force of the legal inference arising in such cases. It is made a question whether the notice to quit on the 29th day of April, 1848, was sufficient notice, and whether it ought not to have heen renewed.
It seems that as the object for which the notice was available, was not to terminate a tenancy at will, in the ordinary form and conditions of such tenancies, but to prevent such a tenancy from taking place by inference upon the termination of a possession, of which the legal duration might be regarded as somewhat uncertain, depending upon the adjustment of mutual accounts, such notice was sufficient. It was an act sufficient to prevent the occupation, subsequent to the expiration of the term settled by the writing, from assuming the character of a tenancy from year to year, at the rent previously established, and payable as before, half-yearly.
The plaintiff has the right to treat the occupation subsequent to the term provided for by the contract, as strictly a tenancy at will, and the rent as payable on demand, according to the provisions of the statute; Rev. Stat. 209, sec. 5; and it is not confined to half-yearly payments, as it would have been if the terms of the contract had been revived, either by express agreement, or by his acquiescence in the tenant’s holding over.
Under the notice of a set-off, the defendant has proved that dui’ing his tenancy he made improvements and repairs upon the premises, somewhat exceeding one thousand dollars, the limit assigned by the lease and subsequent agreement, beyond which those papers did not authorize him to make repairs in payment of the rent.
Against the allowance of that sum, the plaintiff has interposed certain objections. In the first place, there has been admitted into the estimate an item of $75, which, with interest to the date of the report, amounted to $106.50, for timber used, which was the property of the lessors, and which had been furnished by them for the purpose of being used in the repairs. By the terms of the lease, the lessors were to allow in payment of the rent “all the money which Dean should lay out and expend for labor and materials to be employed in the improvements, with interest on such sums as should be laid out in advance of .the rent, and a reasonable compensation for his services; provided, that the expense of the alterations and improvements to be made should not exceed six hundred dollars.” The tenant agreed to keep a true account of all the boards, clapboards, and other lumber described, and which is the lumber in question.
Now it seems to be very clear that as the rent was to he §200 a year, and the allowance to be made to the defendant was for money expended for labor and materials, for his own services and for interest, he could not claim an allowance for the lessors’ own lumber which he used, and for which he did not pay, and so pay the lessors a debt with their own property.
But it is said that in the lease he agreed to keep a true account of such of those materials óf the lessors as he might employ in the repairs, and that afterwards one-of them excused him from keeping such an account; and from these facts the defendant infers that he is entitled to charge the value of them to this plaintiff.
The stipulation of the defendant to keep an account of those materials used was inserted in the lease for the benefit of the lessors. Its obvious use was to enable them to ascertain, with the least inconvenience, the quantity and quality taken. In dispensing with that service, which had been undertaken by the ■ defendant, we may reasonably suppose they intended to dispense with precisely the benefits which they derived from it, and it is not necessary to suppose that they intended more. The obligation to account and to pay for the property of another, taken and used, is not founded upon an agreement to account; so, dispensing with such an agreement would not amount to a waiver of a claim for payment. Independently of the defendant’s agreement to keep an account of the materials used, he would not have had a right, as against the lessors, who owned them, to have added their value to his bill for repairs; so the lessors, in dispensing with that agreement, must not be considered as having conceded to the defendant a thing so extraordinary. The materials appear to have been furnished by the lessors for repairing their own buildings. The reversion was assigned to the plaintiff, charged of course with the rights of possession, acquired by the defendant under the former owners. The extent of these rights depends upon the amount he has expended within the terms of the lease and supplementaiy agreement. There is no ground for swelling the amount of those expenditures, by adding to it what was expended by the lessors. The set-off must, therefore, be diminished by the amount of this item.
By the agreement for farther repairs, made in August, 1839, the defendant had liberty to erect a stable and shed upon the grounds, and to make such further improvements and repairs as might be found necessary, not to exceed in all the sum of four hundred dollars, in addition to the sum of six hundred dollars, provided for in the lease.
In the defendant’s set-off of one thousand dollars for repairs, the expense of the stable and shed is not embraced, for the reason that no such buildings were erected; and the plaintiff contends that as the authorized repairs and improvements, to amount to the additional sum of $400, were to have comprehended these two buildings, this sum ought also to be stricken from the set-off.
This position is in part well founded, but the improvements authorized by the supplemental agreement were not only the stable and shed, but such farther improvements “as may be found to be necessary and pi’oper.” Such appear to have been made, but not to have been authorized by the agreement to the extent of $400. To ascertain how much should be allowed for them, the cost of the stable and shed should be deducted from the sum. To do this, the report may, in the discretion of the Court of Common Pleas, be recommitted, if necessary. The cost of the bam and stable, in addition to the other item of $106.50, should be deducted from the set-off, and judgment may then be made up on the report.