Whether the plaintiff was entitled to recover depended upon what of the testimony was found to be true. If the judge who tried the case believed the testimony of the witness Tyng, not only did he properly refuse to rule, as requested, that, upon all the evidence in the case, the plaintiff was entitled to recover, but he could not have found that the relation of landlord and tenant, or any contract between the parties, was proved so as to give the plaintiff a right of action. Whatever inference *542might have been drawn from the undisputed fact that goods of the insolvent, which passed to the defendants by the assignment, remained on the premises, with the knowledge and' consent of both parties, for about two months after the appointment of the defendants as assignees, if it stood alone, the circumstances testified to by the witness for the defendants would negative an inference of an express or implied promise by them to pay for the use and occupation of the premises. Leonard v. Kingman, 136 Mass. 123. Exceptions overruled.