
    No. 18,956.
    Rachel A. Allen, Appellee, v. Ferdinand Datschewski, Appellant.
    
    SYLLABUS BY THE COURT.
    Practice, District Court — Confusion of Theories in Pleadings —Objections Should be Raised by Motion or Demurrer. Where a petition states a cause of action for damages on account of deceit and fraud and the defendant answers and the trial is had - upon that theory, it' is too late for the defendant by objecting to the introduction of any evidence to claim that the petition was not drawn upon a definite theory or that there is a confusion of theories alleged. The objection should be raised by motion or demurrer.
    Appeal from Barber district court; Preston B. Gillett, judge.
    Opinion filed July 7, 1914.
    Affirmed.
    
      G. M. Martin, of Medicine Lodge, for the appellant.
    
      T. C. Turner, and F. F. Schreiber, both of Colorado Springs, Colo., for the appellee.
   The opinion of the court was delivered by

Porter, J.:

In the district court the cause was tried without objection upon the theory that it was an action to recover damages for fraud and deceit. The petition alleged among other things that the defendant, for the purpose of inducing the plaintiff to exchange her property for his land and with intent to defraud her, stated and pretended that a certain ordinarily dry hole on the land was a good well; that in fact he had her taste the same and pretended that it was water from the well and that in ordinary weather the well contained much more water than at that time. It alleged that the situation of the land was such that it was impossible to make a more complete examination of the well and that she relied upon his representations. The jury returned a verdict in her favor for $350, and the court rendered judgment thereon, from which the defendant appeals.

It is now too late for the defendant to claim the petition was not drawn upon a definite theory or that it stated facts showing a cause of action for rescinding the contract as well as one for damages on account of deceit and fraud. In the cases which the defendant cites (Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; Lapere v. Luckey, 23 Kan. 534; Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785) the petitions were attacked before trial by motions and by demurrers. In the present case there was no motion or demurrer filed. The defendant answered by a general denial and a counterclaim in which he asked judgment against plaintiff upon a promissory note given by her as part payment for the land. At the trial he objected to the introduction of evidence on the ground that the petition failed to state a cause of action. While it may not have stated facts sufficient to entitle the plaintiff to a rescission óf the contract it stated a good cause of action for damages for fraud and deceit. There was no objection to the instructions by which the court presented the theory adopted by all the parties on the trial, and as the evidence of the plaintiff sustained her cause of action the demurrer to the evidence was properly overruled. We find no error in the instructions, and besides, there was no objection made to any of them at the trial.

The evidence offered by the plaintiff tended to show that the defendant made certain representations respecting the well, that they were false, and that she believed them to be true and relied and acted upon them. This is all that was held to be necessary in a similar case upon which the defendant relies. (Grantner v. Fehrenschield, supra.)

The judgment is sustained by sufficient evidence, and as no error is shown it will be affirmed.  