It was held here in Blumenberg v. Myers, 32 Cal. 93, that where a lessee for a term of years, rendering rent monthly, obtains from the landlord before the expiration of the term, a receipt for one month’s rent, commencing at the expira*160tion of the original term for years, he thereby becomes a tenant from month to month only.
There is no material distinction perceived between that case and the case at bar. In that ease it is true that the lessee had sublet the premises for a portion of his original term, but it is not perceived that that fact did or could have influenced the decision of the case.
It is urged in argument that in that case the lessee had assigned to his sub-tenant the whole of his own term at the time he obtained the receipt for another month’s rent. Had such been the fact it is not perceived that it could have been of any importance in the determination of the case. But such was not the fact. Blumenberg obtained the receipt for the extra mouth’s rent on the 23d of March, 1864, and only assigned to Myers the remainder of his term for years on the fifteenth of April thereafter.
But even if the case of Blumenberg v. Myers were not decisive of this case, we think that the conversation of the parties, had after the expiration of the lease for years, and their disagreement as to the term during which the defendant was thereafter to remain, should have gone to the jury for the purpose of ascertaining how or for what term the tenant was thereafter to hold.
The implication of a new term created by the payment of rent after the expiration of the first term is an implication of fact merely. It is evidence from which an agreement for a new or further term may be inferred or presumed. If it be shown that, in point of fact, a new agreement was made, such new agreement would, of course, destroy the implication of a different term, which might otherwise be presumed from the subsequent payment of rent. So if, as here, the evidence offered on the part of the defendant went to show that he had expressly refused to accept a term of one year, that fact would tend to overthrow and destroy the mere presumption drawn from the subsequent payment of rent—that *161he was to continue to hold thereafter for the space of one year.
Judgment and order reversed, and cause remanded for a new trial.