
    No. 226
    ROGERS et v. SMITH
    No. 18941.
    Supreme Court.
    On motion to direct Morrow Appeals to certify. Dock.
    Feb. 5, 1925,
    3 Abs. 94.
    1063. SALES—What is measure of damages for eviction from land which is unequal in quality or value?
   The original action was brought in the Morrow Common Pleas by Chas. Smith, to recover damages for breach of warranty on the sale of 640 acres of land to him, by Moses and Martha Rogers.

' It- was alleged in- Smith’s amended petition that the Rogers had executed a deed to him, in which they eonvenanted that they were the lawful owners of the premises, with full power to convey the same, -and-the title so conveyed was clear, free and unencumbered. The consideration from Smith was $3,000.; He claimed that he had been evicted .from,.214 acres of land; the Rogers never having been seized of that portion from which eviction took place. Smith claims damages for $1200 togethér with interest thereon from 1909, when the convey-anee was made.

Attorneys—L. K. Powell, J. C. Williamson and W. P. Vaughn, Mt. Gilead for Rogers; J. B. Mateer, Mt. Gilead for Smith.

At the first trial judgment on the verdict was rendered in favor of the Rogers, but on retrial the court found in favor of Smith, for the amount prayed for with interest. Judgment was rendered accordingly and the court of Appeals affirmed the judgment.

The Rogers claim that Smith (1) In asking for damages did so as though the entire tract of land was equal in value and also; (2) that the lower court in rendering judgment did so assuming that each acre was of an equal value with each other acre; and arrived at the amount of damages by dividing the total acreage into the total consideration, and multiplying the result by the number of acres from which Smith was evicted.

The land in question is alleged by the Rogers not to be of the same quality or value and therefore the measure of damages is the proportion which the consideration of the land from which Smith was evicted is to the value of the total. Conklin v. Hancock, 67 OS. 455.  