This case presents a single question. The exceptions taken are to the general ruling of the court, that the plaintiff must prove a demand of a lease, or a waiver of a right to such demand, to entitle him to maintain this action. If this ruling was right the exceptions cannot be sustained. The plaintiff might have gone to the jury upon the evidence, if he had elected so to do, but he voluntarily withdrew the case from the jury, reserving merely a question of law, upon the ruling.
The case finds, that under a mitten contract of the defendant to execute a lease of the Mansion-House in Salem for the term of five years, the plaintiff had entered into and occupied the premises during the whole term. After the expiration of the term, and after he had left the premises, he instituted this action for a breach of the contract to execute a lease.
Without deciding any thing beyond this case, or whether without a demand for a lease an action might have been *465brought, if the plaintiff had not had the use and occupation of the premises; the court are of opinion, that after having entered and had possession and occupation of the premises, of which a lease was to be executed, for the full term unmolested, he cannot maintain this action, if he did not, during that period, or at some antecedent time, make a demand on the other party for a lease, or show some acts equivalent to a waiver of such demand by the defendant.
The ruling seems to us to have been proper.
Exceptions overruled.