Bond, J.
This suit was begun by the curator of an insane person. Upon the death of these persons it was revived in the name of the present plaintiff, the public administrator. The statement of account is as follows:
1883. To 1-3 of 20 acres corn or 200 bushels at 25 cents...... $50 00
1883. To 1-2 of 14 acres hay or 14 tons, at $7.00.............. 98 00
1884. To 1-3 of 600 bushels corn, or 200 bushels, at 25 cents ____ 50 00
1884. To 1-2 of 12 acres hay, or 12 tons, at $7.00............... 84 00
1885. To 1-3 of 263 1-2 bushels wheat or 87 1-2 bushels, at 75 cents................................................... 65 60
1885. To 1-2 of 12 acres hay or 12 tons, at $7.00 ............... 84 00
The answer was a general denial. In November, 1882, defendant took a lease on the farm of plaintiff’s *484intestate for a term of three years and four months, agreeing to pay therefor one half of the hay put up in stacks, one third of the corn to be delivered in the crib, and one third of the wheat and oats to be delivered at the thresher. There was evidence tending to prove that defendant occupied the premises during the term of the demise to him; also that fourteen acres of the farm were in meadow during these years. The son of the plaintiff’s intestate testified that he did not remember how much of the farm was cultivated in corn in 1883; he thought there might be twenty to thirty acres, adding, but “I do not remember.” He further stated: “I don’t know that I could say what really that corn crop that year should have been worth. I don’t know as I could make an estimate that would be worth anything definite. The corn crop though ought to have been worth — it ought to make thirty-five or forty bushels. ” He said he thought that there must be twelve to fourteen tons of hay in one half during 1883, and that hay was worth from $6 to $8 per ton. He stated that corn sold for seventy-five cents per bushel that year. He did not remember what portion of the farm was in corn in the year 1884. He did not know as to the crops grown in 1885.' He did know that one year of the three for which the farm was leased there was high water, which washed away the fences and the stock ran on the farm. He further stated that there were one thousand bushels of corn on the farm when defendant took possession under his lease. When asked whether any rents had been paid to his father, he replied: “My father didn’t give any marked evidence of ever receiving any benefits from the place.” Plaintiff also introduced J. W. Banks, who testified to wit: “I lived a half mile from the Easly farm in ’83, ’84 and 1885, on an adjoining farm and knew Easly in his lifetime and knew Mr, Bone while he lived *485on Mr. Easly’s farm. I don’t remember how much was in corn and wheat in 1884. I guess Mr. Bone had about twenty-five or thirty acres in cultivation. My opinion is that the land would produce about thirty or thirty-five bushels to the acre. Corn was worth about twenty-five cents a bushel. I remember the high water washing off-the hay one year when Mr. Bone lived there, and if there was any corn in the bottom land that year it was washed off also.” Lot Banks, witness for plaintiff, testified, to wit: “My farm joins Mr. Easly’s farm and I knew Mr: Bone when he lived on it. I don’t know how much corn or wheat he raised on the farm any year. I saw him cutting wheat there one year. I don’t know how much was in cultivation. I suppose about fifteen acres, and it wouldn’t average more than twelve bushels. I don’t remember what wheat was worth then. I think there was twelve or fourteen acres in meadow. Hay is generally worth from eight to ten dollars a ton. It was good hay. I think it ought to make one and one half tons to the acre.” Defendant’s evidence tended to show that the crops were washed away in 1884; that the wheat crop of 1883 belonged to Mr. Dent, and that the crops in 1885 were takem charge of by the curator, of plaintiff’s intestate. The jury returned a verdict -for plaintiff for $364.09. Defendant appealed. ’Plaintiff filed a remittitur in this court of $134.07 to cover an allowance of interest in the verdict.
Assumpsit upon waiver of tort: proof. *486Verdict: evidence. *485The only theory on which this action can be sustained under the evidence is, by treating it as one in assumpsit upon a waiver of the tort. Finlay v. Bryson, 84 Mo. loc. cit. 670. Under the contract expressed in the lease-plaintiff was entitled to receive in specie a certain proportion of the crops grown on the premises. Defendant *486was lawfully in possession of the crops as tenant and cultivator of the land, and if he failed to comply with his contract, was liable in an action for its breach, or in an action of assumpsit (like the present) upon a waiver of the tort for the value of any part of .the property belonging to plaintiff which defendant converted to his own use. To recover in the latter form of action, it is indispensable that the proof should show either a demand and refusal, or some other distinctive act of conversion of some specific property. Ross v. Clark, 27 Mo. 549" court="Mo." date_filed="1858-10-15" href="https://app.midpage.ai/document/ross-v-clark-8000465?utm_source=webapp" opinion_id="8000465">27 Mo. 549; Knipper v. Blumenthal, 107 Mo. 665" court="Mo." date_filed="1891-10-15" href="https://app.midpage.ai/document/knipper-v-blumenthal-8010327?utm_source=webapp" opinion_id="8010327">107 Mo. 665. The evidence to establish conversion must be adduced, although the action is assumpsit upon an implied promise to pay - for the property converted. Applying this rule to the present case it is plain that there is no substantial evidence that the defendant converted any specific property in his hands which belonged to plaintiff. In the first place the testimony introduced to show what was grown on the farm during the defendant’s term, is little more than a guess or surmise. Again, none of the witnesses testified as to any act of conversion on the part of the defendant of any specific property in his hands belonging to plaintiff. Verdicts must rest upon some substantial evidence. As the present is unsupported it can not stand.
Instruction. *487Conversion: measure of damages. *486As this case must be retried it may be well to call attention to an inaccuracy in the instruction given for plaintiff where it refers to the “corn acturealised” by defendant. There was evidence tending to show that one thousand bushels of corn were on the farm when defendant went in possession. He is not sued in this action for that corn, hence the above language of the instruction might have misled the jury. Again, the measure of damages.for *487conversion is the value of the property at the time it was converted and not what wag paid for it, nor what it sold for. On the next trial the evidence on this point should be restricted to the value of the property at the time of its alleged conversion. For the foregoing reasons the judgment in this case will be reversed and the cause remanded.
All concur.