¶1The principle is too well established for further controversy, that, where a tenant for years holds over after the expiration of his term, the law will imply an agreement to hold, or continue the lease, for another year, upon the terms and conditions of the prior lease. It is the duty of a tenant, so soon as the period of his tenancy expires, to peaceably surrender the possession of the demised premises to his land*554lord, and if lie neglects or refuses to do so, the landlord may treat him either as a trespasser, or as a tenant, according as his own option may dictate. — Taylor’s Landlord and Tenant, § 22; Schuyler v. Smith, 51 N. Y. 309 (S. C., 10 Amer. Rep. 609); 4 Wait’s Act. and Def. 218, § 5.
¶2In all such cases, where there is a holding over by the tenant, the right of the landlord to insist upon the continuance of the tenancy is, in no wise, affected by the fact that the tenant refuses to renew the lease, and gives notice that he has rented other premises with the expressed intention to vacate within a few days. The tenant can not be permitted to enjoy the benefits of continued possession, and at the same time capriciously repudiate the attendant burden of paying just and reasonable rent. Though he may expressly refuse to promise, the law raises such obligation on his part by necessary implication, if the landlord elects to still regard him as a tenant. — Schuyler v. Smith, 10 Amer. Rep. 609, supra; Taylor’s Land, and Ten. § 22; Hemphill v. Flynn, 2 Barr (Penn.), 144; Bacon v. Brown, 9 Conn. 334; Noel v. McCrory, 7 Cald. (Tenn.) 623; Harkins v. Pope, 10 Ala. 493; Schuisler v. Ames, 16 Ala. 73.
¶3In the case of Witt v. The Mayor of New York, 5 Robert. (N. Y.) 248 (S. C., 6 Robt. 441), the tenants gave notice to their landlord that they had hired other premises, and expressly declined another year’s tenancy. They held over twel/oe days, during which time they were engaged in effecting a removal. They were adjudged to be liable for another year at the election of the landlord. A similar ruling was announced in Conway v. Starkweather, 1 Denio (N. Y.), 113, where the tenant held over without authority for the space of two weeks, and it was held to be immaterial that the tenant gave notice that he had hired other premises, and communicated to the landlord his determination not to hold over another year.
¶4The form of action in such cases, it seems, may be either for use and occupation, arising from an implied' assumpsit, or an action on the case for special damages. — Bramley v. Chesterton, 2 Common Bench Rep. N. S. 592; Crommelin v. Thiess & Co., 31 Ala. 412.
¶5Under these principles,.we can see no error in the rulings of the Circuit Court as appearing in the record. The appellant had been the tenant of the appellees for several years prior to October 1, 1879, holding from year to year. He had timely notice that the premises in controversy had been leased to another tenant for the following year, and that he was required to vacate by the first of October, 1879, which was the day of the expiration of his tenancy. It was his fault, not the fault of his landlords, the appellees, that he was unavoidably prevented from moving by the incomplete condition of the premises which *555he purposed to occupy for the ensuing year. Ilis bolding over for ten days fastened on him an obligation to pay rent for the whole year, and it was not sufficient to tender a mere quantum, valebat for the period of actual occupancy, especially in view of tbe fact that the appellees bad expressly notified him that, if he persisted in holding over, they would elect to charge him as a tenant for the next ensuing year. And it is further manifest that, by reason of this act on the part of appellant, the appellees lost the opportunity of obtaining a tenant, as they might otherwise have done.
¶6The renting • of the premises ad interim by Moses Bros, to Hertz, “on account of whom it might concern,” did not affect tlie merits of this case. It was done with the consent and knowledge of "both parties, to the suit, and was understood expressly to be without prejudice to the rights of either party.
¶7The judgment of the Circuit Court must be affirmed.