ON REHEARING
*442Forrest L. Hubbard, Judge. Austin Dunn, Baker, argued the cause for appellant. On the brief were Dunn & Jackson, Baker. David G. Silven, Baker, argued the cause for respondents. On the brief were Banta, Silven & Horton, Baker.On Rehearing
*443Before Perry, Chief Justice, and Lusk, Brand, Warner, McAllister and Kester, Justices. PER CURIAM.A rehearing having been granted herein, we are of the opinion, after careful research, that our former opinion should be withdrawn and the case reversed.
The plaintiffs filed three separate complaints against the defendant for rent; these were consolidated for trial. Three of the causes of action in the three separate complaints are identical as to subject matter, differing only as to the period of time of rental; that is, the plaintiffs, instead of filing a supplemental complaint as a claimed rental period expired, filed a new complaint, so that at the time of trial a rental under these causes of action was sought at the rate of $50 per day for a period of 133 days. A separate cause of action, also for rent, in the sum of $474, based upon a holding over under a different theory and upon a different portion of the property, was included in the third complaint. The jury, without segregating the amounts allowed under each cause of action, returned a single verdict for the plaintiffs in the sum of $3,215.
The assignment of error principally relied upon by the defendant upon appeal is that the verdict is not responsive to the issues involved in the case and, therefore, the trial court erred in not granting defendant’s motion for a new trial.
The facts relied upon by the plaintiffs for recovery show that plaintiffs are the owners of certain real property; defendant became a tenant of plaintiffs; the tenancy was from month to month; defendant relin*444quished a portion of plaintiffs’ premises in September, 1953, and a new and reduced per month rental was charged and received upon the portion of the premises retained.
On November 2, 1953, the defendant notified the plaintiffs it would vacate the premises retained under the new agreement made and entered into in August, 1953. On November 3,1953, plaintiffs notified defendant that they would charge defendant $50 per day if it continued to occupy any portion of the premises it had relinquished to the plaintiffs during the month of September, 1953. The plaintiffs’ claims of defendant’s occupancy and liability for the $50 per day rental is based upon the contention that defendant had failed to remove from the premises relinquished in September lumber and lumber waste material deposited thereon by the defendant.
G-. P. Lilley, one of the plaintiffs, testified to the original rental agreement and subsequent events, stating in part as follows:
“A. Mr. Moyer and a Mr. Vorhies came to Baker looking for a location, and inspected the property. They said they thought it was what they required, or their principals required, and that they would let me know whether or not they would be interested in a rental or lease or purchase of the property. I told them I would be glad to work out some sort of proposition with them, and they said they would go back to Los Angeles and talk to their principals and call me up. I don’t believe they called up, but both Mr. Moyer and Mr. Vorhies returned, and we made arrangements to rent them the property on the basis of $1500.00 a month, which included all the buildings, all of the storage space in and around the plant, and the block of ground across, I think that’s 10th Street, *445west of the plant. That included all of the machinery in place, and they were to try it out with the idea that they would purchase the property at a little later date. * * *
*****
“Q. Will you tell us what they were renting at the end of the term?
“A. I think it was in August when Mr. Bussell was here — I may he wrong on these dates, but he decided he did not want anything except the one building. No equipment. In accordance with that agreement, we reduced the price to $800.00 a month. They then decided during that month that they would require some other equipment that we had, and with that in mind the rent was raised to $950.00 per month. This rental did not include any of the south buildings, nor the space southeast of the south buildings.
“Q. How was the tenancy terminated?
“A. By letter from Grifford Phillips.
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“Q. Mr. Lilley, did you respond or reply to the letter you received from this defendant?
“A. I did.”
The plaintiff’s response to the letter, insofar as is material, is as follows:
“We believe that you fully realize that no attempt has been made by you to vacate the various premises which are not covered in your rental and now being used for your equipment and inventory. Providing any of this space is occupied after December 3rd, 1953, we will look to you for rental, at the rate of $50.00 per day as compensation for space so occupied.”
We will first give our attention to plaintiffs’ three causes of action, which plaintiffs state are “based on the theory that the defendant was a tenant at suffer*446anee of the area occupied by the [defendant’s] lumber [and waste material] when it received the notice and it continued to occupy a portion of the premises thereafter as a tenant at sufferance. ORS 91.040.”
It must be kept in mind that these three causes of action are based upon use of a portion of plaintiffs’ premises that had been relinquished by the defendant as a month to month tenant prior to receipt of the plaintiffs’ notice to the defendant as above set out.
Plaintiffs rely for recovery upon a general rule of law expressed in 32 Am Jur 800, Landlord and Tenant § 950, as follows:
¡í# # * -g generally held that if, before the termination of the term and before rights which the law implies have arisen by reason of holding over without notice, a landlord notifies his tenant for a fixed term that in case he holds over beyond the term he must pay a specified increased rental, the tenant will become liable for such rental if he in fact holds over and either remains silent with reference to the notice or fails to express his nonassent to the terms thereof.”
But reading further in the same paragraph of the citation we find there is a divergence of opinion in the courts as to whether there exists in fact a contract to pay a specified amount of rental or only an implied promise to pay the reasonable rental value of the premises:
“* * * There is, however, authority to the effect that a tenant in possession for a fixed term who is notified before the expiration of the term that if he holds over the rent will be increased to an amount stipulated does not, by merely holding over and remaining silent as to the notice, become liable for the increased rent demanded. According to this latter view, the tenant must pay the reasonable rent value of the premises for the period of his *447holding over, whether he is regarded as continuing in possession as a mere trespasser, or as a tenant by sufferance.”
For reasons which will become apparent, it is not necessary for us to determine in this case which rule this court should adopt.
Neither, do we believe, is it necessary to discuss the assignments of error set out and discussed in the defendant’s brief since it is apparent from the face of the record that these causes of action were tried upon an erroneous theory of the law, and in the interest of justice Rule 50 of this court should be invoked.
The trial court instructed the jury as follows:
“* * * As to the claim for rent of lands outside the building, you are instructed if you find from a preponderance of the evidence that after December 3rd, 1953, the defendant was a tenant of the plaintiffs, and if you find that during such tenancy, if any, the plaintiffs notified the defendant that if defendant occupied any part of the premises which was not included in the lease, the rental therefor would be $50.00 a day, and if you further find that the defendant did so occupy any portion of said premises other than the building after December 3rd, 1953, then you are instructed that the plaintiffs are entitled to recover in those two cases, being Cases 2079 and 2094, and the amount of recovery as to this claim would be the rental specified in said notice, if any, multiplied by the number of days, if any, that defendant continued to occupy said land after December 3rd, 1953, but not beyond April 9th, 1954. In that connection, you may consider the question of whether or not, after the notice claimed to have been given by the plaintiffs to the defendant that after December 3rd, 1953, they would be charged $50.00 a day rental, the defendant knowingly and purposely occupied any portion of plaintiffs’ lands, exclusive of the building referred to in this notice.”
*448This instruction, to which the defendant objected, is clearly erroneous.
All of the parties agree that the tenancies involved herein were all from month to month. As previously noted, the plaintiff Gr. P. Lilley testified that the original agreement included “* * * all the buildings, all of the storage space in and around the plant, and the block of ground across * * * west of the plant.” All of the parties also agree that in August a new agreement was made by these parties which provided for the rental of but one building at a much reduced rental and that this new agreement did not “include any of the south buildings, nor the space southeast of the south buildings.”
It is upon the property described as not being included in the last rental agreement that the increased rental is sought. Therefore, it seems clear that the new agreement, without reservation of any rights, effected a cancellation of the old landlord and tenant relationship upon this portion of the premises as a matter of law. See 2 Tiffany, Landlord and Tenant, 1323, § 190b.
“* * * A surrender by ‘act and operation of law’ occurs when transactions have taken place between the reversioner and the tenant of the particular estate, that is, the landlord and tenant, which create a condition of facts inconsistent with the continued operation of the lease.” Abrahamson v. Brett, 143 Or 14, 24, 21 P2d 229.
It is also a rule of law, well-established in this state, that a landlord after accepting a surrender of the premises, unless there were prior covenants to the contrary, cannot recover rent accruing subsequent to such acceptance. Tracy v. Thun, 125 Or 323, 267 P 398; Alvord v. Banfield, 85 Or 49, 166 P 549.
*449The evidence in this case, however, shows no agreement between the parties relative to the storage of the lumber upon these premises and, since the defendant cannot be considered a tenant at sufferance or a tenant at will, any recovery for failure to remove the lumber and waste materials after notice given must be had, if at all, in damages for injury to plaintiffs’ reversionary interest.
Since an action for the recovery of rent cannot be maintained, the causes of action we have just discussed must be dismissed.
The plaintiffs’ third complaint, as amended, set out as a cause of action for rent arising by reason of the defendant holding over upon a portion of the premises last occupied by the defendant under a month to month tenancy agreement. There was no demand for increased rental as to this occupancy. The occupancy charged is based upon the defendant’s failure to remove some of its wood “pallets,” from a corner of the last rented building. Under this cause of action the plaintiffs sought recovery of the sum of $474. As previously pointed out, the verdict rendered was for a single amount upon the several causes of action.
While no error is claimed as to this cause of action, it is necessary that the matter be retried as it is obvious from the single verdict we cannot determine whether the jury returned a verdict for or against the plaintiffs upon this issue.
For the reasons above set out this case is remanded to the circuit court for further proceedings consistent with this opinion.