The opinion of the court was delivered by

In the court below, the plaintiff, in an action for use and occupation, instituted uudev the third section *95of an “ Act concerning landlords and tenants,” recovered against the defendant, who is the plaintiff in error, a judgment for the stun of one hundred and sixty-five dollars and seventy-one cents damages, with costs of suit. That judgment has been removed by writ of error into this court, and we are asked to reverse it upon one or more of the errors, which are assigned upon bills of exceptions duly sealed.

It appears .that, at the trial, the plaintiff offered and gave in evidence to the jury an agreement in writing not under seal, executed by him and the defendant, dated April 13th, 1852, by which it was stipulated that Stockton leased to Holmes a storehouse and wharf on the Princeton basin for five years, at the yearly rent of one hundred and twenty-five dollars, payable half-yearly, from the 1st of May, 1852, and that Holmes should pay the said rent: the lot to include 24 feet on the east front of the storehouse, and the right of a road for wagons around the storehouse, excepting when it might be necessary to unload coal through the alley for the coal yard then leased to A. L. Martin. It was admitted before the jury, that the premises had been occupied by the defendant, and that he had paid the stipulated rent for the first year- of the term. The plaintiff having here rested his case, the defendant insisted that he should be called, upon the ground that the action could not be maintained, because the lease had not been terminated.

The court- overruled the motion, whereupon a bill of exceptions was prayed and sealed.

Although error lias been assigned on that point, the counsel for the plaintiff in error did not seriously insist in the argument here, that the position was tenable, but in fact abandoned it. There was no error in the court for refusing to have the plaintiff called.

The chief error alleged and relied on was, that the court overruled competent, legal, material, and important evidence offered by the defendant.

*96The decision of the court was made upon the opening by the defendant’s counsel to the jury, what he intended to prove, in avoidance of the plaintiff’s demand.

The theory of the proffered defence is, that the premises occupied by the defendant were not worth the sum stipulated to be paid for them, because since the execution of the paper writing, and after the termination of the first year of the tenancy, they had been made worthless for the purposes for which they had been hired, by the acts of the plaintiff. In support of tl/is theory, it was proposed to prove that, in the spring of 1854, the plaintiff had sold a portion of some open ground belonging to him lying between the premises occupied by the defendant and the canal, across which unoccupied space passers upon the canal could look upon the store of the defendant; and that the purchasers had immediately erected a large brick store thereon, which almost shut- off from the defendant’s store the transient custom from passers on the canal that he had been accustomed to receive; and 'further, that the canal company (of which the plaintiff was a member) had given greater business facilities to the competing merchants occupying the new store than they did to the defendant, by reason of all which facts, it was contended, iu argument, that the business of the defendant had been greatly diminished without any fault of his, and the stand thereby was rendered valueless. Upon the motion of the counsel for the plaintiff, the court overruled the opening, and refused to permit the defendant to introduce before the jury the evidence thus proffered. To that ruling a bill of exceptions was prayed and sealed, whereby the point has been raised and debated, whether by that decision the court ■ below rejected competent, legal, and material evidence.

The question is to be solved by determining the correct construction to be given to the language of the statute upon the authority of which the suit was commenced. The act provides that a landlord, who disposes of a term *97in his lands or tenements by an agreement not under seal, may go for the use and occupation of his premises against his tenant, and recover a reasonable satisfaction in damages for the same while so held and enjoyed ; and if any parol demise or any agreement (not being by deed) comes out in evidence upon the trial, wherein a certain rent is reserved, the plaintiff shall not therefore be non-suited, but may make use thereof, as an evidence of the quantum of the damages to be recovered. What does this section of the statute mean ? Is an agreement, if produced and proved on a trial, to bo conclusive evidence of the amount of satisfaction which should be recovered, or is it only to be used as an item in ascertaining what would be a fair annual value? If that clause in the section of the statute has any significancy, it, must have been intended to make the rent reserved in a parol demise conclusive evidence ; because the plaintiff could have used the agreement as a part of his evidence without legislative aid. He was saved from a non-suit by the prior clause of the section, and in the view taken by the defendant’s counsel, the clause under examination is useless and unmeaning. The weight of authority, both in England and this country, is against the defendant’s position. The design of the statute is to give a landlord, where his contract is not by deed, a right to recover in damages from the occupant of his property an equivalent for rent, and it then declares that any written agreement, showing by a reserved rent the concurrence of their minds as to the annual value of the premises, shall be evidence of the quantum to be recovered.

In 7 Wend. 109, Williams v. Sherman, Justice Co wen says: “If an agreement was established, whereby the defendants became obliged to pay $40 a month for the use of the wharf, the court would have been uselessly employed iu listening to testimony to prove what was a fair and reasonable value; for the stipulated price must, according to the statute, regulate the amount of the recovery.” The judge of the Circuit Court correctly refused, *98in the case before us, to receive evidence outside of the agreement to prove the annual value of the premises.

Again, assuming that the evidence offered could lawfully have been received, ought the facts relied on by the defendant to have defeated the plaintiff’s recovery ?

The case shows that the plaintiff had fulfilled his part of the contract. He gave the defendant possession of the premises contracted for; their extent was definitely settled in the agreement, and the defendant admits that for one year he had enjoyed the consideration for the annual rent reserved in that agreement. Nor was the act of the plaintiff which is complained of, an eviction of the defendant from any part of the premises hired to him. It is not pretended that any fraud respecting the subsequent appropriation and use of the vacant lot was practiced upon the defendant when he entered into and signed the written agreement.

How can the defendant torture a sale by the plaintiff of a distinct lot, for which he paid no rent, and about which nothing was said when the contract was made, into an excuse for withholding payment from year to year of the stipulated rent?

The evidence opened by the defendant was not only illegal, in the particular form of action adopted by the. plaintiff, but it would have been irrelevant in a suit for rent brought upon an agreement similar in terms executed under seals.

The judgment must be affirmed, with costs.