dissenting. Assuming, but which is not conceded, that the notice of May 25, in which the defendant was requested to pay rent from June 1st at the rate of $30 per month, amounted to notice to him to vacate the premises or to a termina*148tión of the contract at the expiration of 30 days from that date, the defendant, in occupying the premises after the expiration of the term, did bo either as a tenant holding over or as a tenant under a new rental contract. If he was a tenant holding over, he would be liable for rent at the rental value of the premises during the period of occupancy after the expiration of the term. If he was a tenant under a new contract, he would be liable for the amount of the rent contracted to be paid either expressly or by implication. It appears, conclusively and without dispute, from the evidence that there was no express agreement renewing the contract for a period after the expiration of the term, or as to any amount to be paid as rent. The defendant expressly refused to pay the $30 proposed by the plaintiffs. There is evidence that the plaintiffs, at some time after May 25th, the date of the notice, proposed to lease the property to the defendant at $25 per month, but it does not appear that this proposal was made prior to the date of the alleged expiration of the term. The evidence as to this is contained in the testimony of Mr. McCord, one of the plaintiffs, who was the only witness for the plaintiffs. He testified that after the defendant’s letter of May 29th to the witness, he did not hear from the defendant “for sometime, and he ’phoned him,” and the, defendant then stated that he would not pay more than $20 per month, and the witness stated to the defendant that the witness would take $25 per month; that the defendant and the witness never did agree on the amount to be paid; that the defendant came to the witness’s office “ about the last of June, 1934,” and offered to rent the premises at $20 per month, “but witness did not agree to it, but offered to rent the same to defendant for $25 per month, and defendant would not agree to this; and that no agreement was ever made between him and the defendant as to the same; but continued in his demand for $25 a month.” On the assumption that the letter to the defendant of May 25, in, which $30 rent was demanded from the first of June, constituted 30 days notice of the termination of the contract of June 25th, a demand to pay rent at $25 per month made upon the defendant “sometime” afterwards, or a demand to this effect made “about the last of June, 1934,” certainly does not appear to be a démand made prior to June 25, the daté which, as is contended, was the expiration of the term by virtue of the notice contained in the letter of May 25. There *149is some evidence in the testimony of Mr. McCord that he wrote the defendant a letter dated June 2, 1934, and deposited this letter in the United States mail. The contents of this letter do not appear. The defendant, however, testifies, and it is uncontradicted, that he never received this letter.
The question therefore is, did the defendant, in remaining in possession of the premises after the expiration of 30 days from May 25, do so under an implied agreement to pay rent at $25 per month, or in any amount, as proposed by the plaintiffs? The evidence appears to be insufficient to authorize an inference that at any time prior to the expiration of 30 days after May 25th, i. e. prior to June 25th, the plaintiffs offered to make a contract of rental with the defendant at a rental of $25 per month, or any other amount, for the period beginning at the expiration of the defendant’s term, assuming that the term expired on June 25. The evidence therefore is insufficient to authorize the inference that the defendant, in remaining in possession of the property after June 25, did so under an implied acceptance of any offer by the plaintiffs to make a new contract for any definite amount as rental. Besides, if the defendant held over after the plaintiffs had proposed to make a new contract for a definite amount to be paid as rent, this did not amount to an acceptance of the plaintiffs’ proposal as respects the- amount of rent to be paid. Where, before the expiration of a tenant’s term, the landlord proposes to the tenant a renewal of the contract at an advanced rental, and the tenant expressly refuses to accept the proposition, and makes a counter-proposition as to the amount of rent to be paid, the mere act of the tenant in remaining over after the expixation of the term does not amount to an implied contract to pay rent during his occupancy after the expiration of the term at the advanced rental proposed. The tenant would be liable only for the rental value of the premises. There is no evidence whatsoever as to the rental value of the premises. Therefore the evidence is insufficient to authorize a verdict for the plaintiffs. I am of the opinion that the court erred in overruling the defendant’s motion for a new trial, and must dissent from the judgment of affirmance.