The simple question is whether there was evidence to justify the jury in finding that defendant was a tenant of plaintiff. Plaintiff owned the property, and he agreed to permit defendant to leave upon the *456property certain personal property, for no specified time and for no specified compensation. If, under the agreement, defendant was entitled to have, and did have, possession of the real estate, he was a tenant. If defendant was not entitled to have, and did not have, possession of the real estate, then he. was not a tenant. In that case he was only storing his goods in a building of which plaintiff was owner and in possession. The latter is defendant’s position, as he claims he shows when he said to plaintiff: “If I had known you were going to charge so much, I would have moved the goods to a cheaper place.” '1 he plaintiff’s testimony, as to the conversation had between the parties at the beginning of the arrangement, is: “He said he wanted permission to leave the goods in the factory until they were disposed of. * * * That was the substance of the conversation.” The defendant states the conversation in the same manner. The goods did remain there for sometime. The defendant states that after this conversation the goods were in charge of a watchman; that he employed a man to watch those goods in that factory. The learned justice, in charging the jury, said correctly that there could be no recovery in this action unless there was an agreement of letting by plaintiff to defendant; and there seems to be no disagreement on this principle of law, underthe complaint in this action. We are unable to see that the evidence justifies a finding that there was such agreement. All that was said at any time is consistent with the idea of storing the defendant’s goods in plaintiff’s building; The plaintiff in same letter demands rent, but that demand is not acceded to, and therefore amounts to nothing. But there is nothing in any of the conversations proved which supports the claim that the defendant was in possession of the property. One single fact should be noted: The defendant says that he employed a watchman to watch the goods. But that is not sufficient to show that defendant was in possession of the premises. These goods were about in Various parts of the building, and they were in various states of manufacture. It was quite natural that defendant desired to leave them in the building until some final disposition; and it may be quite proper that he should pay for this privilege of storing them in plaintiff’s building; but the action is for rent and occupation, and plaintiff, to recover, must show that defendant had possession of the building. We think that there was not evidence justifying that finding. Judgment reversed, new trial granted, costs to abide event.
Landon, J., concurs.