Field, C. J. and Norton, J. concurring.

This is an action to recover the sum of $1,200 for the use and occupation of certain premises in the city of San Francisco. The complaint sets up an agreement to pay a monthly rent of three hundred dollars for the. use of the premises, and the question is whether this agreement has been proved. It appears that the *122defendant had been occupying the premises at a monthly rent of two hundred and fifty dollars, and that the plaintiff served upon him a notice to quit. The effect of this notice was to terminate the tenancy on the twenty-fifth of August, 1861, previous to which time the defendant proposed to the plaintiff, through the. agency of a third person, to continue his occupancy at a rent of three hundred, dollars. This proposal was communicated to the plaintiff, who expressed himself as satisfied with it, but there is no positive evidence that he notified the defendant of his acceptance. The defendant remained in possession, however, and the inference is that he did so with the consent of the plaintiff, and that the proposal was accepted. We must infer this, or infer that he kept possession against the plaintiff’s will and as a trespasser, and of the two inferences we adopt the former.

The judgment is affirmed.