Opinion by
Smith, J.,In this case the lease, in the first instance, fixed the term at eleven months from June 15, 1900, at a specified rental, “ with the privilege of two additional years on the same terms.” Had there been nothing further in relation to the term, occupancy by the lessee after May 15, 1901, would have been an election to hold for the two additional years. But a subsequent clause provided that “ either party may determine this lease at the end of said term by giving the other notice thereof, at least one month prior thereto,” and that in default of such notice the lease should continue from year to year until terminated by like notice. This gave the lessors power to defeat the lessee’s election, by determining the lease on his own part, at the end of the term, or of any year, by a month’s notice, and in default of this notice gave the lessee the right to remain as tenant from year to year. Where the terms of a grant are ambiguous or self-contradictory, they are to be construed most favorably to the grantee. Hence, in this case, the lessee had the right, at his election, to hold for two additional years, under the first clause of the lease, notwithstanding notice by the lessor under the second, or to quit at the end of the first additional year, under the second clause. He elected to do the latter, and in accordance with his notice *425the term expired May 15, 1902. Meantime, on or about May 9, the parties came to an agreement for a monthly lease, and the lessor promised that the lessee should have a monthly lease from May 15, 1902, at the monthly rental of $33.34. On or about May 15, the lessee called on the lessor for the lease, and was informed that it would he prepared and left at his office on the 'following morning. This, however, was not done, and the plaintiff refused to execute a lease. The defendant, after another demand for a lease, which was disregarded, removed from the premises before June 15, 1902, and paid the rent to that date.
The lease having expired May 15, 1902, the defendant no longer held the premises as lessee under its terms. Thereafter he occupied under an agreement for a lease. The plaintiff’s refusal to execute the lease did' not convert this occupancy into a tenancy for an additional year, or from year to year, under the lease. The lease had been determined by the election of the lessee. Therewith were determined the lessor’s rights under it, and he was left with no claim except under the agreement for a lease which he had refused to carry out.
An agreement for a lease vests no estate in the proposed lessee, and consequently the stipulated return cannot be recovered as rent. An action for its breach maybe maintained by either party against the one in default. On the part of the proposed lessor, in the absence of special damage, this is substantially an action for use and occupation, if the proposed lessee has taken possession. The case in hand, however, is an action on the lease, to recover rent alleged to have accrued for a period beginning May 15, 1902. To this, it is a full defense that the lease was determined, in accordance with its terms, on that date. An action on the agreement cannot be sustained by the plaintiff, since he is the party in default; and as to any claim for use and occupation, the defendant has paid the stipulated price for the full period of his occupancy.
The matters set forth in the affidavit of defense are sufficient to bar judgment for the plaintiff.
Judgment reversed and procedendo awarded.