Opinion by
Mr. Justice Brown,These appellees recovered a judgment against the appellant in an action of ejectment: Brandmeier v. Pond Creek Coal Co., 219 Pa. 19; and this action in assumpsit was instituted for the recovery of damages resulting from their ouster from the property. Their claim, as set forth in their statement, does not arise from any contract with the defendant, express or implied, but the learned trial judge, in his opinion directing judgment to be entered on the verdict in favor of the plaintiffs, held that inasmuch as skill in pleadings “is a lost art,” and there had been a fair trial of the case upon the merits, the distinction between trespass and assumpsit might be disregarded, and cited National Oil Refining Co. v. Bush, 88 Pa, 335, as sustaining him. That case cannot be so read. On the contrary, in holding that the plaintiff could not recover in assumpsit for the use and occupation of the premises, unless the jury should find that it had permitted the tenant to remain in possession of the property after the expiration of his lease, it was said by Gordon, J.: “If, indeed, as was said in the case between these same parties, reported in Bush v. Refining Co., 5 W. N. C. 143, the defendant was permitted to remain in the possession of the property, and he did so remain until the plaintiff elected by its writ of ejectment, or otherwise, to regard him as a trespasser, up to that time, it might recover *284from him the worth of the premises, by the action of assumpsit for use and occupation; but from the time the company made its election to treat him as a trespasser, it could no longer recover from him on the ground of an implied contract; for, the landlord, having thus determined the status of the occupant, there is no room left to presume a contract.” There is nothing in the case before us from which a contract can be presumed. The plaintiffs have unmistakably, in their pleadings and proofs, elected to treat the defendant as a trespasser, and, this being so, there can be no recovery against it in an action of assumpsit.
Skill in pleadings may be a lost art, but the distinction between assumpsit and trespass remains. Our procedure act of 1887 recognizes it, and courts cannot disregard it. A defendant, sued for trespassing upon a plaintiff’s land or for mesne profits, still has a right to say that judgment cannot be recovered against him in assumpsit. We ought hardly to be called upon to make this announcement, especially in view of what was so recently said in Reilly v. Crown Petroleum Co., 213 Pa. 595.
If this case was fairly tried upon the merits, as th¿ learned trial judge seems to think, the trial was not with the defendant’s consent. In its affidavit of defense it raised in limine the objection to the form of the action, and the first offer of the plaintiffs on the trial, which was the record of the ejectment suit between them and the defendant with the verdict and judgment thereon, followed by a habere facias, was promptly objected to as not being relevant to the issue joined under the pleadings. It is not possible to disregard the contention of the appellant that no recovery can be had against it in this action unless a cardinal rule of pleading, upon which it has a right to rely, is to be utterly ignored. This cannot be done, and the judgment must, therefore, be reversed.
The other questions raised by the assignments need not, under the circumstances, be discussed.
Judgment reversed.