(after stating the facts). — 1. From the foregoing statement it will be perceived that the court treated the action as one at common law to recover the actual value of the timber taken from plaintiff’s land and converted by defendants to their own use. The pleader undertook to bottom his petition on the Trespass Act (section 4572, R. S. 1899) but failed to allege that defendants had no interest in the timber alleged to have been cut and removed from plaintiff’s land. For this reason the petition is not good and failed to state facts to bring it within the provisons of section 4572, supra, however, it states a cause of action at common law for the actual value of the timber taken. [Pitt v. Daniel, 82 Mo. App. 168; Hewitt v. Harvey, 46 Mo. 368; Tackett v. Huesmann, 19 Mo. 525.] And we think the learned trial judge took the proper view of the petition and correctly declared the law by the instruction given for plaintiff. The instructions asked by defendants and refused would have been good if the suit had been bottomed on the trespass section, but as the petition is not sufficient to state a cause of action under that section the instruction was properly refused.
*4592.- The witnesses testified that defendants bought the timber on section 13, township 23, range 15, and put the men to work to cut timber on this section. They further testified that this land joined that of plaintiff, described as section 15, 21 and 22, township 23. Section 13 does not join or even corner with sections 15, 21 or 22 in any township, and the witnesses must have been mistaken as to the numbers of the sections owned by the plaintiff. But the witnesses for both sides testified that the land of plaintiff and defendants joined, and spoke of the dividing line. However this may be, this evidence is of no particular importance, as the controlling issue was whether or not timber had been cut from plaintiff’s land by defendants’ employees and delivered to them and then converted to their own use. The jury so found and we think there was sufficient evidence to warrant this finding and for this reason the defendants’ motion for a compulsory nonsuit was properly refused.
