delivered the following opinion on the petition for a re-hearing :
The petition says “ upon the basis that the contract here-sued on was an implied contract for rent your petitioner respectfully directs the attention of the court to the testimony in the record by which it may be supported.”
This court is debarred from considering whether the testimony will support the theory of an implied contract, for-two reasons.
1st. The state of the pleadings forbid it. The affidavit which contains the only statement of the plaintiffs’ case,, shows such an express contract as excludes all implication. It describes the locality of the property for which rent is. claimed, it fixes the term of the lease at one year, it states the exact amount of rent to be paid for its use, and lastly that the amount of the rent by the “ agreement ” of the parties was to be paid in money. If anything was left to which the law can attach an inference or create a presumption from any incomplete action of the parties, we are unable to see it so far as the statements in the affidavit are concerned. The affidavit in our judgment unquestionably *620shows an express contract. An alleged express contract •cannot be proven by testimony proving an implied contract.
2d. The act of March 11th, 1879, chapter 3131, does •not in our opinion change the common law in so far as making an express contract for a fixed rent indispensable to the right to distrain for rent due. The act throughout, whenever it alludes to the compensation to be given to the landlord for the use of the property, designates such compensation as “ rent.” Section 1 says: “ All claims for rent shall be a lien. * * *” Section 2. “ If any person to 'whom any rent may be due. * * *” ETo other word "is used in the act to express the idea of compensation or 'satisfaction. The word rent has a definite legal signification, a signification that shows that it can only be created by express contract. “ Rent is a return or compensation for the possession of some corporeal inheritance and is a •certain profit, either in money, provisions or labor, issuing •out of the lands in return for their use. Some of its common law properties are that it must be a profit to the proprietor, certain in its character or capable of being reduced 'to a certainty, issuing yearly, that is periodically, out of the 'thing granted, and not be a part of the land or thing itself.” ■Coke Litt., 47 ; Blackstone’s Commentaries, 41.
The act only authorizes a distress for rent due, and rent being solely the creature of express contract naturally leads_ us to the conclusion that the statute, does not authorize a -'distress warrant when there is only an implied contract.
We can find nothing in the statute to authorize us to declare that it altered the common law as to the kind of contract which could be enforced by distress.
Counsel in his petition says further: “ But plaintiff respectfully maintains that the authorities sustain his position in another view .of the case. Admit for the sake of *621the argument all that defendant claims ; that there was a, lease; that plaintiffs’ agent who has charge of the store-agreed to continue the lease for the same rent that he had rented the store for in previous years, two hundred dollars per annum, with the understanding, however, that he-was to trade out the amount in goods and merchandise-from the store for his own use, and that the amount was. thus taken up by the agent. Can Strauss be held to part of this as an actual bargain, though the court should determine that the other part was void for want of power in, the agent ?”
The agreement sworn to by Strauss, which counsel proposes to admit as true, was that he was to pay two hundred dollars in goods and merchandise.
Counsel insists that we should, by treating the part of the agreement to pay -in goods and mei’ehandise as void,, coustrue the contract to pay two hundred dollars in money. The amount to be paid and the method of its payment being so intimately connected and inter-dependent, and together forming the consideration, are inseparable. We would be making an entirely new contract for the parties, by dividing the consideration.
If we were to hold that the entire consideration, to wit: to pay two hundred dollars in goods and merchandise, was. void for want of authority in the agent, we would be left to the consideration of the contract only as a permissive occupation of the premises and implied promise to pay a reasonable compensation, which we have seen would not be-covered by the statute alluded to.
We are precluded also by the testimony from assuming-that the holding over by Strauss after the expiration of his lease is such a continuation of the former tenancy as would subject him to a distress. The evidence on this point by the plaintiff is that Strauss had rented the store house for’ *622several years. Mr. Smoot says in his deposition : “ He,” (meaning his agent Whitfield) “made the contract for rent each year; that Strauss rented the store subject to our approval.” Mr. Hartshorn, the co-plaintiff, in his deposition says: “ Mr. Whitfield was given the usual authority of attorneys ; he made the contracts each year subject to our approval.”
Rehearing denied.