The defendants contend that they were tenants at sufferance only, and as such had a right to quit the premises occupied by them when they saw fit, and that they were liable during the time that they were thus tenants at sufferance only for a pro rata rent to be determined by reference to the written lease under which they first entered upon the premises. Upon *371this point, the instruction of the judge who presided at the trial was, that in order that they should become tenants at will, and therefore not entitled to quit, except upon notice, the jury must be satisfied that they remained under some new agreement, either expressed or implied, and entered upon the possession of the whole premises which were embraced in the new agreement, as it was alleged, and of which their original tenement was a part. That there was an agreement for a lease of the whole premises at the termination of the defendants’ original lease was admitted, and also that the plaintiff received rent after the termination of the original lease from the defendants of the part of the premises not included therein, but which were to be included in the new lease contemplated; and the only questions between the parties were whether there was an entry or remaining in possession under the new agreement, and whether it was agreed by the plaintiff that he should repair the whole premises, or only that portion which, under the original lease, was held by the defendants. 'The instruction given was in conformity with well settled principles of law. When a party remains in possession of premises at the expiration of his term, and no new agreement is made, he becomes a tenant at sufferance. By the common law he was not liable for rent as such, although liable for the fair value of the premises in an action for use and occupation, and the landlord was entitled to resume possession, or the tenant to quit the premises, at any time. Merrill v. Bullock, 105 Mass. 486. By our statute he is made liable for rent, and the provisions of the lease under which he entered may be used in evidence to prove the amount of rent due from him. Gen. Sts. c. 90, § 26. When, however, there is a new contract, either express or which may be fairly implied from the acts of the parties, and the tenant occupies under it, his tenancy becomes a tenancy at will, and can only be terminated by the landlord or tenant in the mode prescribed for that class of estates. In Delano v. Montague, 4 Cush. 42, where a tenant was in under a lease and a paroi agreement was made between him and the landlord for a lease of the premises for a year additional on the same terms as the written lease, but, before the written lease had expired, the tenant notified the landlord that he should not remain under the proposed agreement or comply with it, and subsequently remained after *372expiration of his lease, it was held that he was a tenant at sufferance only; but the court declined to decide whether if the notice of his abandonment of the paroi agreement had not been given previous to the expiration of the written lease he would or would not have been a tenant at will. In Edwards v. Hale, 9 Allen, 462, it is said, that while a mere continuance in possession under the old lease makes a party a tenant at sufferance, if there is a new contract shown, either express or inferrible from the dealings of the parties, the estate becomes one at will.
In the present case, rent was paid by the defendants under the new agreement, and received by them from their sub-tenants, and although this payment was under protest, yet it was in a legal sense a voluntary payment. Even if they were threatened with being ejected, it was not such duress as entitled them to make the payment and afterwards to seek to recover it back or escape from any of its other legal consequences. When a party has no chance to be heard, as when there is a warrant of distress against his property, he may pay under protest, and "afterwards litigate the question at issue between himself and the party who has thus extorted money from him; but the defendants had, at the time of payment of the rent, the opportunity to litigate the question between them and the plaintiff, and if no such sum as that claimed was due, they could not have been ousted for non-payment. Rent having been demanded and received by the landlord on the basis of the new agreement for the whole premises, he could not afterwards treat the defendants as tenants at sufferance of the portion of the premises they had originally held; and, having the rights, they are under the liabilities of tenants at will, and are not entitled to quit without notice.
The defendants further contend that the fact that the lease was never executed, for which the agreement was made, entitles them to be considered as tenants at sufferance only. But if they continued in possession of the premises originally held, and took possession of the other portion of the premises, which the jury, following the instructions of the court, must have found that they did, under the new agreement, their tenancy was one which could only have existed under that paroi agreement. It was not the case of a mere holding of premises after the expiration of an old lease in the absence of a new agreement, which would have been a ten* *373ancy at sufferance; and would not become such by a neglect oi refusal to give the lease contracted for, if such neglect or refusal were shown. In fact, however, according to the bill of exceptions, the plaintiff proposed a form of a lease which the defendants kept under consideration, and although never executed by the plaintiff, the defendants had made no objection to it at the time they abandoned the premises.
The defendants further object to the ruling that if the defendants entered under the agreement to repair and give a new lease in writing of the whole building, even if the jury should find that the agreement was to repair the whole building, the failure of the landlord to do so would not justify the defendants in changing the character of the tenancy from that of a tenancy at will to a tenancy at sufferance. The presiding judge had previously instructed the jury that the burden of proof was upon the plaintiff to show that the defendants had entered under the new agreement; and the obvious meaning of this instruction is that if the defendants had thus entered, a tenancy at will was created, which would not be converted into a tenancy at sufferance by a failure to make the repairs as agreed; and this was correct. Even if the making of the repairs upon the whole premises was a condition precedent to the acceptance of the new lease by the defendants, yet, by entering upon the premises under the new agreement before this was done, they had made themselves the tenants at will of the plaintiff, and the failure of the plaintiff to perform that which he had agreed to do would be a breach of contract for which they would be entitled to their action, but would not enable them to terminate the tenancy upon which they had entered, or to abandon the premises abruptly as a tenant at sufferance might do, nor would it deprive the plaintiff of his right to demand the rent of the premises which became due by virtue of the agreement under which they had entered. Leavitt v. Fletcher, 10 Allen, 119. Surplice v. Farnsworth, 7 Man. & Gr. 576.
In considering what the rent of the estate at will should be, the terms of the paroi agreement were properly referred to, and also the fact that the defendants had paid in answer to the demand of the plaintiff for the first quarter at the rate of $400 per quarter, which was the amount stipulated in that agreement.
Exceptions overruled.