The opinion of the court was delivered by
Barrett, J.The plaintiff must stand, if at all, on his count in assumpsit for use and occupation. In order to maintain his cause on that count, the relation of landlord and tenant ex contractu, must exist, either by express or implied agreement.
The defendant is explicit that he bought out and paid the plaintiff for the use of the pasture in the sale of the milk business and material for the stipulated $1000. The plaintiff testified that defendant never hired the pasture of him — never agreed to pay for the use of it — that there was no contract whatever and never had been in respect to it — that he did not give defendant any permission to occupy it. This was not contradicted, except as by defendant’s claim that the pasture was included in the sale of May 6th. The plaintiff must stand upon the position into which he swears himself on the trial, and this is conclusivo against any relation of tenancy. It rebuts any implication resulting from occupancy by permission. The law is definite and plain against his right of recovery. Though the evidence as to how much plaintiff paid Brown for the property might have been admissible as circumstantial, bearing on the likelihood of the pasture being embraced in the sale to defendant for $1000, the special verdict shows that it was made the ground and rule for computing the damages which" plaintiff was entitled to recover. This was error. *301What plaintiff paid Brown for the use of the pasture had no tendency, as lawful evidence, to show what its use was reasonably worth, as the ground and measure of plaintiff’s right to recover in his suit against the defendant.
Judgment reversed, and cause remanded.