ON RESPONDENTS’ PETITION FOR REHEARING
Banta, Silven & Horton, Baker, for the petition. Dunn & Jackson, Baker, contra. Before Perry, Chief Justice, and Lusk, Brand, Warner, McAllister and Kester, Justices. LUSK, J.The plaintiffs have petitioned for a rehearing. They urge that the court overruled its original opinion and reversed the judgment in their favor because of an error not assigned in defendant’s brief and upon a point of law which they have never had an opportunity to argue.
In our second opinion, rendered June 26, 1957, we expressly stated that we took notice of the error referred to under Rule 50 of the rules of this court, which provides that “this court reserve the right to take notice of an error of law apparent on the face of the record” even though it is not assigned in the appellants’ opening brief. We thought, and still think, that an erroneous instruction of the court upon the *452crucial issue of law involved may have resulted in a miscarriage of justice. We have no doubt of our authority and duty to correct the error.
The plaintiffs, in a memorandum which is part of their petition for rehearing, have now presented to the court the legal propositions and the authorities upon which they rely in support of their theory. Before referring to these, it is necessary to restate the issues and to examine the pleadings.
Plaintiffs are seeking to recover the sum of $50 a day as rent of a portion of certain real property in the city of Baker. The period covered by their claim is 133 days, commencing December 4, 1953, and ending April 9,1954.
Plaintiffs were owners of two buildings and surrounding land comprising a plant for the processing, storage and sale of lumber and lumber products. One of the buildings is referred to in the testimony as the north building, the other as the south building. In April 1953 the defendant entered into possession of these premises as a month-to-month tenant. In August or September 1953 the parties made a new agreement under the terms of which all the property except the north building and the area adjacent thereto was to be surrendered and the tenancy of that building, together with some equipment, continued at a reduced rental. According to the plaintiffs’ evidence, the defendant had stored a large pile of lumber on land adjacent to the south building and had left equipment and inventory in the south building which it failed to remove after the new agreement was made despite repeated demands of the plaintiff that it do so.
On November 2, 1953, the defendant notified the plaintiffs in writing that it was terminating its tenancy of the north building as of December 3, 1953. On No*453vember 3, 1953, the plaintiffs wrote the defendant a letter which included the following:
“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.”
Evidently, the phrase “various premises which are not covered in your rental” referred to the south building and adjacent area.
In these circumstances the court instructed the jury that, if they found from a preponderance of the evidence “that after December 3, 1953, the defendant was a tenant of the plaintiffs,” and that during such tenancy “the plaintiffs notified the defendant that if defendant occupied any part of the premises which was not included in the lease, the rental would be $50 a day,” and that if they further found that the defendant did so occupy any portion of the premises other than the building after December 3, 1953, then the plaintiff would be entitled to recover as rent the amount specified in the notice multiplied by the number of days of such occupancy. We held in our second opinion that this instruction was erroneous. The question is upon the correctness of that ruling.
We will now consider the pleadings. It must first be noted that this is not one law suit, but three consolidated for trial. We shall refer to the separate cases by their number in this court. Number P-1747, filed December 29, 1953, is an action to recover rent at $50 a day for the period commencing December 3, 1953, a total of 25 days. Judgment for $1250 was prayed for. Paragraph IV of the amended complaint alleges:
“That continuously since the 3rd day of Decern*454ber, 1953, the defendant has occupied a portion of said premises bounded on the south by Carter Street (being on the southerly side of the plaintiffs’ said premises and excluding the area occupied at the time of filing the original complaint herein, by lumber not then belonging to the defendant, which lumber was piled immediately alongside and westerly from the right of way of the O.W.R. & N. Co.) and a portion of the building situate upon said premises, and the plaintiffs have taken possession of the remainder of said premises not so occupied by the defendant, and in accordance with said written notice have continued to recognize the right of the defendant to occupy said portion of said building and premises at said $50.00 per day rate; that said rate is a reasonable rental, that at the time of the filing or the original complaint herein, the defendant had so occupied said portion of said building and premises for a period of twenty-five successive and consecutive days from and after December 3,1953, and rental in the sum of $1,250.00 was on said date due and owing from the defendant to the plaintiffs; that the same remains due and unpaid.” (Italics added.)
The second action, Number P-1748, was filed February 20, 1954. It claims rent for the period of 57 days which had elapsed since the filing of the first action. The prayer asks for judgment in the sum of $2850. Paragraph IV of the amended complaint is identical with Paragraph IV of the amended complaint in Number P-1747 save for necessary changes in dates, number of days and the amount alleged to be due.
The third áction, Number P-1749, was filed April 9, 1954, and covers the final period of occupancy of 52 days. Judgment is sought for $2600. Paragraph IV of the first amended complaint is identical with Paragraph IV in the complaints referred to in the two actions previously filed except for necessary changes *455in dates, number of days, and tbe amount claimed to be due. On October 12,1955, a second amended complaint was filed containing two causes of action. By tbe first cause of action the plaintiffs seek to recover rent at the rate of $50 per day for 52 days or a total of $2600. It departs, however, from the allegations of the previous pleadings by confining the issue to the premises exclusive of the building. Paragraph III alleges:
“That on and prior to December 3, 1953, the defendant was renting from plaintiffs, under month to month tenancy, a certain building of the plaintiffs situate in Blocks 17 and 18 of McCrary’s Addition to the City of Baker, Oregon, and occupied certain lands in connection therewith; said tenancy was terminated on December 3, 1953, pursuant to written notice delivered by the defendant to the plaintiffs on November 3,1953. That the plaintiffs thereupon and prior to the expiration of said tenancy, notified the defendant that to the extent the defendant occupied any portion of the plaintiffs’ said premises exclusive of the building subsequent to December 3, 1953, the rent chargeable to and payable by the defendant would be the sum of $50.00 per day; that the defendant made no response nor objection thereto.” (Italics added.)
Aside from necessary changes as to number of days, etc., Paragraph IV is the same as Paragraph IV of the complaint in the previous actions except for the following allegation “and in accordance with said written notice [the plaintiffs] have continued to recognize the right of the defendant to occupy said portion of said premises [instead of ‘said building and premises’] at said $50.00 per day rate.”
The second cause of action in P-1749 is for the recovery of rent for occupancy of a portion of the north building from December 3, 1953, to April 9, 1954. The complaint alleges that the plaintiffs elected to consider *456the defendant as a tenant as to the portion of the building so occupied and that the defendant was obligated to pay as rental a proportionate part of the rental being received during said tenancy. This cause of action has no bearing on the question under consideration.
It is plaintiffs’ theory, as stated in their petition for rehearing, that, after termination of the tenancy as to the area now in question by the new agreement entered into in August 1953, the defendant held over and thereby became a tenant at sufferance (citing ORS 91.040); that the plaintiffs had the option to treat the defendant as a trespasser or to waive the wrong and treat the defendant as a tenant (citing Parker v. Page, 41 Or 579, 583, 69 P 822), and that they did elect to treat the defendant as a tenant. See, also, Peterson v. Dose, 124 Or 30, 263 P 888. The plaintiffs rely on the rule of law quoted from 32 Am Jur 800, Landlord and Tenant § 950, in our second opinion, 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.”1
In our second opinion we called attention to the *457diversity of judicial decision regarding the rule quoted, hut for reasons there given found it unnecessary to express an opinion upon that question. It is a rule to -which the majority of the courts adhere: 2 Tiffany, Landlord and Tenant 1490; annotation 109 ALR 201; though it has been criticized obiter by this court, McClung v. McPherson, 47 Or 73, 83, 81 P 567, 82 P 13, and questioned by Tiffany, op. cit. at 1491. But, whether it is a sound rule or not, the instruction embodying it given in this ease was clearly erroneous.
In the first place the allegations of the plaintiffs’ pleadings in cases numbered P-1747 and P-1748 were, in substance, that the plaintiffs notified the defendant that if the latter continued to occupy certain land and a portion of a building it would be required to pay $50 a day rent, and that they had recognized defendant’s right to occupy “said portion of said building and premises at said $50 per day rate,” but the court instructed the jury that if they should find that the defendant occupied any portion of the premises other than the building it was obligated to pay rent at $50 a day, thereby submitting to the jury a different issue than that made by the pleadings in those cases. Not only that, the instruction authorized the jury to find liability of the defendant to pay rent at $50 a day for the land, exclusive of the building, notwithstanding this recognition in the pleadings of defendant’s right to occupy both the land and a portion of the building at that rate.
There is, however, another and fundamental fault in the instruction — one which reveals a fatal defect in the plaintiffs’ case. The theory underlying the rule in question is that “holding over the term after such a notification of increase in rent is to be regarded *458as an acceptance of the landlord’s proposition to remain in possession at that rent.” Tiffany, op. cit. at 1491.
By the terms of the notification here the defendant was informed that “if any of this space is occupied after December 3, 1953” the increased rent would go into effect. Assuming that the rule is to be followed in this state, we think that it cannot be applied to this case. We will not impute to a tenant implied assent to a proposal to pay the same rate of rent for a portion of the landlord’s premises as for the whole, at least in the circumstances here present. There might be cases — as, for example, if occupation of a part of the premises by the tenant effectually excluded the owner from the whole — where a notice of that kind could be sustained. But that is not this ease, for the plaintiffs, as their pleadings show, took “possession of the remainder of the premises not so occupied by the defend' ant.” If the tenant had occupied an area 10 feet square it would have become liable under the plaintiffs’ theory to pay the same rent as though it had occupied an acre and a substantial part of a building. The notice, in our opinion, did not constitute a bona fide offer to continue the relationship of landlord and tenant.
Any views expressed in our decision rendered June 26, 1957, which are in conflict with this opinion will be considered withdrawn. The petition for rehearing is denied. The judgment is reversed and the cause remanded for further proceedings in conformity herewith.
Strictly, the rule as stated is not involved here because this case does not deal with a tenancy for a fixed term. The defendant, at the time of the termination of the tenancy of the south building and adjacent area, became a tenant at sufferance of those premises (assuming the facts as shown by plaintiffs). ORS 91.040. If plaintiffs thereafter, and before the notification of increased rental, elected to treat defendant as a tenant the terms of the tenancy would have remained the same as theretofore, that is to say, a month-to-month tenancy, at the same rent. Peterson v. Dose, supra; Parker v. Page, supra; Tiffany, op. cit. at 1478. It would seem that “no notice to quit being given, a tenant from month to month * * * cannot, by a mere notice to him of an increase in rent, be deprived of his right to continue in possession indefinitely.” 109 ALR 211.