
    Albert A. Hatton, et al., Dependants in Error, v. Charles L. Henman, et al., Plaintiffs in Error.
    
    Kansas City Court of Appeals.
    November 26, 1928.
    
      
      Shull & Shull for appellants;
    IV. K. Amich for respondent.
    
      
      Corpus Juris-Cyc References: Covenants, 15CJ, section 211, p. 1311, n. 94; Evidence, 22CJ, section 118, p. 177, n. 3; section 1114, p. 910, n. 15.
    
   WILLIAMS, C.

— This is a suit for a breach of warranty and comes to this court from the circuit court of Buchanan county.

Tiie facts show that the plaintiffs bought a tract of land from the defendant. This land was conveyed by a general warranty deed. The evidence showed that the defendants did not put the plaintiffs in. possession of that part of the tract which had been, and was .'at the time the case was tried, in possession of the Chicago, Burlington & Quincy Railroad, and used as a right of way.

The jury assessed plaintiffs’ damage in the sum of $335, and after an unsuccessful motion for a new trial, defendants appeal.

The appellant makes many assignments of error but does not support these assignments by authority.

It is first contended that the demurrer to the petition should have been sustained. However, the record does not disclose any ruling upon the demurrer.

It is next contended that the petition does not state a cause of action by reason of the failure to properly plead the deed. It was said in Exchange Nat. Bank of Tulsa, Okla. v. Daley, 237 S. W. 846, l. c. 847:

“Defendant insists that the petition fails to state a cause of action for the reason that it does not allege that plaintiff was the owner of the property at the time of the alleged conversion and that it was at that time entitled to the possession thereof. There was no attack made on the petition at the trial, except an objection at the introduction. of any testimony on the ground that the petition failed to state a cause of action. .This method of attacking the petition is not looked upon with favor. If the petition states any cause of ’action, even though it is defectively stated, it is good after verdict. [Storage & Moving Co. v. Harding, 126 Mo. App. 489, 104 S. W. 484; State ex rel. v. Reynolds, 137 Mo. App. 261, 117 S. W. 653.]

¥e think that under this doctrine the petition is not fatally defective.

It is next contended that the plat showing the land should not have been received in evidence because it was not shown to be correct. However, the surveyor testified that he knew the plat Avas correct from having checked it Avith the field notes of the survey Avhich he helped to make. He Avas further asked “Is this a correct map?” And his answer Avas, “Yes, sir.” We think, therefore, there is no merit in this assignment.

It is next contended that Avitness Hatton should not have been allowed to testify as to the uses to AAdiich he could have put this land. We think this Avas competent on the cjuestion of value of the tract.

It is next urged that the A'alue of the triangular tract should not have been admitted.. ■ We think that this Avas the proper Avay to put. the jury in possession of the facts of the ease.

The witness Hatton testified that the triangular tract, and similar land in that vicinity, was worth ^150 an acre and we think there was no error in this evidence.

The next assignment is that the court should haAre directed a verdict for the defendants. We think the evidence Avas clear that the 'plaintiff made a case. [Lindsay v. Smith, 178 Mo. App. 189; Kite v. Pitman, 278 S. W. 830.]

We think there is no merit in the assignment that the instractions used the letters C., B. & Q. R. R. Co. instead of Avriting oaR the entire name.

It is next contended that the evidence did not sIioav that the railroad occupied this land. However, the record shoAVS that Mr. Hatton testified that the triangular piece of ground that lies east of the highway Avas occupied l^ the railroad company and had been so occupied, for about forty years. We think the case Avas fairly tried and properly submitted by the instruction. ’

The judgment is affirmed.

Frank, G., concurs. .

PER CURIAM: — The foregoing opinion by Wiijxuis, (!., is adopted as the opinion of the court.

Bland and Arnold, concur; Trimble, P. J., absent.  