This is an action brought to recover for the use and occupation of certain real estate. Upon the trial before the auditors, it appeared, that the occupation of the defendants commenced under a parol lease from George King, then the owner of the estate, and from whom the defendants derive title, since the occupation commenced.
The defendants, for the purpose of showing the extent of their liability, offered parol evidence of their agreement with *61King, under which they entered and occupied-the premises. To the admission of this evidence the plaintiffs objected, but the auditors received it.
It is now claimed, by the plaintiffs, that as the agreement was a contract, relating to lands, the admission of parol evidence to prove it, was in violation of the provisions of the statute of frauds.
On the part of the defendants, it is insisted, that, as the premises had been occupied by them, and nothing remained, necessary for the fulfillment of the contract, except the payment of the stipulated rent, the evidence was proper, to show the amount of that rent, and was not within the provisions of the statute.
If the decision were to be governed by the English cases, aside from the statute of 11 Geo., 2, ch. 19, § 14, perhaps the weight of the authorities might be considered in favor of thé plaintiffs’ claim, although the opinions of the English judges have not been entirely uniform upon the subject. Corking v. Ward, 1 Man., Gran. & Scott, 858, (50 E. C. L., 858.) Price v. Leyburn, 1 Gow, 109, (5 E. C. L., 479.) De Medina v. Polson, Holt’s Cases, 47, (3 E. C. L., 21.)
The case last cited was an action for the use and Occupation of a house. The lease was by parol, and the defendants’ counsel claimed that it was void, inasmuch as it was not a lease in possession, but in reversion; and that no evidence could be received of any ingredient of a contract, which the law had declared to be void. Gibbs, C. J., said, “ The agreement is void by the statute of frauds, but I am of opinion, that you may still resort to it, to calculate the amount of rent.” ' ,
But we have no occasion to examine these authorities, because all doubts upon that subject in England have been removed by the provisions of that statute. It is there enacted, “that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements or hereditaments, held or occupied by the defendant, in an *62action on the' case, for the use and occupation of what was so held or enjoyed; and if, in evidence on the trial of such action, any parol demise, or any agreement (not being by deed) wherein a certain rent was reserved, shall appear, the plaintiff in such action shall not-therefore be non-suited, but may make use thereof, as an evidence of the quantum of the damages to be recovered.”
And we think the law of Connecticut, as repeatedly recognized by our courts, is in conformity with the provisions of that statute.
Previous to the passing of that statute, it was generally holden in England, that an action of assumpsit, for rent in arrear, upon a parol lease for years, could not be maintained. But, our courts, disregarding the opposing decisions of the English courts, held, that an action of indebitatus assumpsit, ¡'might be maintained, even upon an implied promise, arising from the use and occupation of real estate, by permission. And such may now be considered as the settled law in this state. Gunn v. Scoville, 4 Day, 228.
The principle has been established by numerous decisions, in this state, that, where a parol contract has been made for the transfer of real estate, at a stipulated price, and a conveyance has been made, according to the terms of the contract, an action at law may be maintained, to recover the price.'
Thus, in one of the earliest cases upon this subject, the plaintiff had sold his farm to the defendant, and gave him a deed of it, and then brought an action of assumpsit, to recover the stipulated price. The superior court said, “ The defendant has got a deed of the plaintiff’s farm, the contract has been executed on one part, which takes it out of the statute made to prevent frauds and penuries, 'The case is not within either the letter or spirit of the statute.” Case v. Tracy, 1 Root, 479. The same principle has been recognized in other cases. Clark v. Brown and wife, 1 Root, 77. Noyes v. Moor, 1 Root, 142. Sparrow v. Smith, 5 Conn. R., *63117. Belden v. Seymour, 8 Conn. R., 313. Boardman v. Steele, 13 Conn. R., 559.
And in a more recent case, where an action at law was brought to recover for land conveyed, this court held, that the fulfillment of the contract on the part of the plaintiff-, in pursuance of the contract, entitled him to the sum stipulated, and that parol evidence of the contract was no t precluded by the statute. Baxter v. Gay and wife, 14 Conn. R., 122.
And, in a still later case, Hinman, J., referring to the case last cited, remarked, “We are aware of a class of cases, where one of the parties, having performed his part of the agreement, may bring a suit at law and recover the consideration promised for such performance.” Eaton v. Whitaker, 18 Conn. R., 231.
And, in another case, this court held, that parol testimony was admissible, for the purpose of showing, that the consideration for the sale of real estate was different from that expressed in the deed, and, what, in fact, was the true consideration. Meeker v. Meeker, 16 Conn. R., 387.
Now, if parol evidence is admissible, to prove the price agreed to be paid for the sale of land, after the conveyance has been made, it is difficult to see, upon what principle it can be said, that similar evidence is not admissible, to prove the sum agreed to be paid for the use of land, after the tenant has enjoyed that use, according to the terms of the agreement.
Were it otherwise, the statute, instead of operating for the prevention of fraud, might be converted into an instrument for its protection. If a tenant, after having occupied property, under a parol demise, can turn around, and say to his landlord, You can not recover the rent, for I object to any parol evidence of my agreement to pay it, it might well justify a remark made by Chief Justice Best, in a similar case when he said, “ This is one of the most iniquitous objections ever made.” Seago v. Deane, 4 Bing., 459, (15 E. C. L., 39.)
But again, the plaintiffs’ action is founded upon a contract, and they can not recover, unless they prove a contract on the *64part of the defendants, either express or implied. Birch v. Wright, 1 T. R., 387. Boston v. Binney, 1 Pick., 1. Strahan v. Smith, 4 Bing., 91, (13 E. C. L., 255.) And, if the defendants entered and occupied, under an expressed contract, the law will imply no other. If the agreement was, that they should pay $1,000 a year rent, the law will not imply an agreement to pay $1,500, although in the opinion of respectable witnesses, the latter sum might be considered a fair rent.
“ A .landlord,” says Bayly, J., “ suing for rent, must proceed, either upon an express contract made with the tenant, or upon a contract which the law will imply, from the relation subsisting between them.” Hull v. Burgess, 5 B. & C., 232, (11 E. C. L., 246.) And again, “Where there is an express contract between the parties, none can be implied.” Greniman v. Legge, 4 B. & C., 324, (15 E. C. L., 229.) And Maulé, J., in the case of Berrey v. Bindley, said, “ If a party enter under an invalid agreement, or under an agreement not amounting to a demise, he shall still hold, subject to the terms of that agreement, so far as they are not at variance with the species of tenancy, which the law under the circumstances creates.” 3 Man. & Gran. 514, (42 E. C. L., 271.)
We are satisfied, therefore, that the auditors are right, in admitting parol evidence, to prove the agreement under which the defendants entered.
2. But it is said, the superior court erred in deducting the expenses of the improvements from the amount of rent. And this depends upon the construction of the agreement, respecting the mode of paying for those expenses. If that was distinct and independent of the demise, then the decision is wrong.
But the auditors have found, that this agreement was a part of the contract of lease, and, although there was no express stipulation, as to the mode of payment, yet it is obvious that it must have been the understanding of the parties, that these expenses were to be charged, as part payment of the *65rent, and consequently the defendants were properly charged with only the balance.
' The plaintiffs, having suffered the defendants, after the death of the lessor, the original owner, to continue their occupation as before, without questioning the validity of their title, or requiring any change of terms, must be considered as having assented to their occupying, upon the terms on which they had entered and had previously occupied. At any rate, none other are proved, and the law will imply no other.
We are, therefore, of opinion, that there is no error in the judgment complained of.
In this opinion, the other judges concurred, except Church, C. J., who was disqualified, and Storrs, J., who was absent.
Judgment affirmed.