
    Barry vs. Nuckolls.
    Nuckolls rented a room to an association of individuals, at six dollars per month, for tbe purpose of performing plays. After this contract Barry became a member of the association, and as such, used and occupied the room: Held, that Barry was not liable for the rent, before or after he became a member, upon a count on the special contract, or upon a cotlnt in indebitatus assumpsit or quantum meruit for work and labor done.
    This action of assumpsit, for use and occupation, was instituted in March, 1839, in the circuit court of Hardeman county, by Nuckolls against Barry, Dunlap, judge, presiding. The declaration contains three counts; the first upon a special contract; the others on a general indebitatus assumpsit, and quantum meruit. The bill of exceptions shows that the plaintiff proved a contract for the rent of his house by certain persons, calling themselves a “Thespian Society,” for so long a time as they might choose to occupy it, at the rate of six dollars per month. That they took possession, fitted it up, and commenced the performance of plays. That several months after the making of this contract, and the taking possession, the defendant became a member, and performed parts in plays. That he was not a member when the contract was made, nor for long after. The court on these facts, charged the jury, “that the defendant would not be bound for the previous, but would be bound for the subsequent rent, without- a new contract in ratification of the former.” The jury rendered a verdict for plaintiff for $106. A motion for a new trial was made, overruled, and judgment rendered on the verdict. Defendant appealed.
    F. D. Barry, for plaintiff in error.
    1. An. incoming partner is not bound for previous contracts of the firm. Montague on Part. 135, 139, 145: Collyer on Part. 301, 303, 304, 307, 295, 296: Smith’s Mer. Law, 28: Selwyn N.-P. 316: Gow on Part, passim: Chitty on Con. 71, 76.
    2. Where one enters into partnership with one, who is tenant under a lease, this gives the landlord no right of sueing the firm. Collyer, 308 : 2 Marshall Rep. 434: Hoby vs. Roebuck, 7 Taunt. 157.
    3. So' of adventures, the incoming partner is not liable for the price of the goods. Collyer, 301, 308: 4 Taunt. Rep. 582, Young vs. Hunter.
    
    4. Where a new partner comes in, an acceptance by the old partners, for an old debt in the name of the new firm, does not bind the new partner, in the hands of the creditor. Byles on Bills, 24: East’s Rep. 48, Sheriff vs. Wilks.
    
    As to the nature of this tenancy, it is not from month to month, nor for any fixed period in law or in fact, but strictly a tenancy at will.
    ■ 1. Where parties agree on a tenancy so long as both may please, it is strictly tenancy at will. Comyn on Landlord and Tenant, 8, 9, 91. When for an indeterminate period, it is from year to year. Do. Chitty on Con. 96. ■
    As to the proof necessary to sustain the action:
    1. A contract will not be implied from the mere fact of occupation; there must be an express promise, or á recognition of the general right of the plaintiff to recover. 2 Dane’s Abr. 446: 9 Dowling & Ryland, 480 : 22 E. C. L. R. 394.
    In general, as to clubs, &c.
    1. Assent is necessary by the members of a club to a purchase by one for the use of the club. Selw. N. P. 313:2 Stark. R. 416: Selw. N. P. 316.
    2. Suppose members of a church rent a house for the purpose of worship, will it be held that all who may afterwards become members can be sued by the landlord for the rent ?
    Where an express contract is proved, there is no room for one to be implied. “JSzpressum facit cessare taciturn”
    
    The charge of the court placed the liability of the defendant wholly on the ground, that he was bound for the rent by force of the contract made and operative long before he was a member.— It expressly excludes the idea of his being bound by acknowledging his liability under it, or by making a new contract, either express or to be implied from occupation. It is, therefore wholly erroneous.
    Bailey, for Nuckolls.
   Turley, J.

delivered the opinion of the court.

This is an action of assumpsit by the defendant in error against the plaintiff. The declaration contains three counts.' The first, a special count, charging that the plaintiff in error, together with others, organized a Thespian Society for the enacting of plays, and that they rented a house for that purpose from the defendant, and agreed to pay him six dollars a month rent for every month they should so occupy it. The second, is an indebitatus count for work and labor done. And the third, a quantum, meruit count for work and labor done. The proof shows, that some young gentlemen organized the society, and made the contract set forth in the first count; and that the plaintiff in error became a member of the society some months after the contract. The court was requested to charge the jury, that if the contract was made before said plaintiff became a member of the society, he was not bound by it. This the court refused, and charged, that in such a case he would not be bound for the pi’evious, but would be for the subsequent rent, and the jury found accordingly. This charge is certainly erroneous under the state of the pleadings. If the plaintiff in error be liable at all for the rent after he became a member of the society, it is not upon a count framed upon the contract originally made, nor upon an indebitatus or quantum meruit count for work and labor done, but upon a count for use and occupation. Reverse the judgment, and remand it for a new trial.  