delivered the opinion of the court, January 5th 1880.
The defendant’s first point (1st assignment) raises the important question of this case. It called upon the court to instruct the jury that “ there is no evidence of a letting of the basement of the market-house by the defendant to the plaintiff, but simply of an appointment of the plaintiff as clerk or superintendent of the markets, with a right to the market fees as prescribed by the ordinance, and the right to rent the stalls of the market-houses.” The court negatived this point so far as it conflicted with the general charge as it is in direct conflict with the general charge it must be regarded as refused without qualification.
It is not contended that there was any contract of letting between the parties other than such as may be implied by the appointment of plaintiff as superintendent of the markets. On the 25th of May *330182.4, city councils passed an ordinance “ To define and regulate markets in the city of Meadville.” By the terms of said ordinance “ the grounds upon which the market-house is built, alleys adjacent, and Market street between Chestnut and Centre streets are hereby dedicated and set apart as market grounds and spaces, to be known as city market,” &c. Section 3 provided that “from and after the passage of this ordinance the revenues to be derived from the fees of the market, the rent of stalls and stands, shall be disposed of annually to the highest bidder.” The seventh section provided that the person whose bid should he accepted “ shall be invested with the office of superintendent of the market, and shall be entitled to all the fees to be derived from the rent of the stalls and stands, as well as the fees collected from the vendors of produce and so forth, and for the fees for the use of the public scales.” The bid of the plaintiff below was accepted and he was appointed superintendent of the markets in January 1875. At that time there was a cellar under the market-house. There was no evidence that it had ever been used for the storage of meat and vegetables. One of plaintiff’s witnesses says: “ I think there are no stalls in the cellar to rent to persons who sell vegetables. There are no stalls in the cellar. I do not know whether it is used now. It is very dark down there. You cannot see unless you go where the window is.” There was a room partitioned off from this cellar. In the fall of 1872 it was fitted up and used for “tramps,” from some time in November to the month of January. There was a pi'ivy vault in this room described by plaintiff’s witnesses as a “dug out” about two feet deep. This became offensive the succeeding summer and its use as a “tramp room” was discontinued. The plaintiff alleged that it so affected the entire cellar as to make it unfit for use by the market people for the storage of meat and vegetables, whereby he was prevented from renting some of the stalls, and was deprived of the use of the cellar for the year 1875. This action was brought to recover damages for the loss occasioned thereby.
The learned judge assumed; that the cellar was rented to the plaintiffs. He instructed the jury (see 4th assignment), “We say that we believe the cellar was rented to him, and it became a part of his prerogative to rent and take fees for it.” We look in vain through the evidence, for such a letting. The stairway to the cellar could only he reached through a trap-door. One witness says he supposed it was for the use of the markets. The plaintiff testified : “ When I got possession, that trap-door and the stairs were there. It was for the use of the market people.” Conceding all this to be true, it does not help the plaintiff’s case. There was no proof that the cellar was intended, or had ever been used for a purpose that was in any degree interfered with by the existence of the nuisance complained of. If it had been used as a room for the *331storage of meats and vegetables by the owners of market stalls, such fact could readily have been shown. There is nothing in the ordinance from which an authority to use the cellar for such purposes, can even be implied. On the contrary, we find by the 22d section, that “ Every person occupying a space in said market shall, within one hour after the time of closing said market, as mentioned in section 2, cause his provisions and vehicle, if he or she have one, to be removed from the market grounds; also to remove therefrom all animal and vegetable matter.” This was, perhaps, not intended to apply to the occupiers of market stalls, as such persons, by section 2, are not confined to hours ; but it is reasonable to suppose, if the cellar were adapted to storage purposes, and intended therefor, some provision would appear in the ordinance giving such right, and regulating the manner of its use.
In the absence of any contract of letting, the rights of the plaintiff are defined by the 7th section of the ordinance before referred to. He “ shall be entitled to all the fees to be derived from the rent of the stalls and stands, as well as the fees collected from the vendors of produce and so forth, and from the fees for th*e use of the public scales.” There is nothing here, from which the right of occupiers of market stalls to use the cellars, or the right of the plaintiff to collect fees therefor, may be inferred. As no such use was shown to exist at any time, it is necessary, in order to sustain the plaintiffs’ claim, to write into the ordinance something that city councils have not placed there, or else make an agreement for the parties, which the evidence does not show they have made for themselves.
We are of opinion, that the defendant’s first point ought to have been affirmed. We need not discuss the remaining assignments. They are all carved out of the first.
Judgment reversed.