Opinion by
Mr. Justice Trunkey:It was rightly ruled by the learned judge of the common pleas-that there is no evidence varying the effect of the written lease, and, therefore, the 2d and 3d assignments of error are not well taken.
The contention of the defendant in error that “the boarding" of Shamburg was not a part of the lease,” and that the agreement therefor was a collateral matter, is undeniable. Neill and Shamburg made the lease to Beaver. Shamburg and Beaver-made the contract for the boarding- and use of rooms. No matter if Beaver declined to close the contract without his wife’s-, consent, for she did consent, and he boarded Shamburg and his-family and permitted them to occupy the rooms during the term, of the lease.
In the testimony as printed, respecting the terms of the contract for board and rooms, there is little conflict. Shamburg testifies that he was to have the rooms as long as he wanted, and for an indefinite time. Beaver says the arrangement for board and rooms was for a year. They agree that no new contract was afterwards made for either board or rooms, that the board was paid for, and no charge was made for rooms for the first-three years.
Beaver testifies that he demanded possession of the rooms before the first year was up, and also the second year, and again in the fall of the third year; but Shamburg and his family remained and were boarded notwithstanding. It does not appear that any demand was accompanied with notice to Shamburg that there would be any increase of price for board or rooms if he-should remain.
*95We think it was error to instruct the jury that the .plaintiff “is entitled to have deducted, by way of equitable defense, the rental value of four rooms which he alleges that Dr. Shamburg persisted in occupying after notice to vacate the same,” and the first assignment of error must be sustained.
What the contract was, and whether it was violated by Sham-burg must be determined by the jury. From the fact that, after the notice, Shamburg did not leave the rooms, the legal conclusion by no means follows that their rental value shall be deducted from his claim under the lease.
Had Beaver ceased to board Shamburg and his family, the case would be different. Telling him to go, and afterwards inducing him to stay, leaves the case as if Beaver had said nothing. Had he wanted him to go what would have been more natural than to have stopped feeding him ? Unless he was bound by contract, Beaver was not bound at all to permit Shamburg and his family to eat at his table and lodge at his house.
Possibly a jury may find a breach of contract by Shamburg; but they should be instructed that if Shamburg persisted in occupying the rooms after notice to quit as he had done before, and Beaver persisted in boarding him and his family as he had done before, without change of terms, he is neither entitled to extra price for board nor pay for rooms. Notice to a boarder and occupant of a room to quit, followed by no other action than a continuance of boarding and occupancy as before the notice, makes no change in the contract as regards compensation.
Judgment reversed, and venire facias de novo awarded.