
    BRADLEY et al., Appellants, v. CAMPBELL et al., Respondents.
    St. Louis Court of Appeals,
    June 4, 1908.
    REPLEVIN: Property Destroyed Pending Action: Damages. In an action of replevin for tbe possession of e-battels which were retained by tbe defendant on giving a delivery bond, where tbe property was'destroyed by fire before tbe trial, .tbe court on finding tbe issues for tbe plaintiff, should render judgment for the value of tbe property.
    Appeal from Pemiscot Circuit Court. — No». Henry C. Riley, Judge.
    Reversed and remanded (with directions) and certified to Supreme Court. .
    
      Ward & Collins for appellants.
    The court erred in sustaining respondents’ motion for a new trial and in not sustaining appellant’s motion to set aside the order of the court in sustaining said motion for a new trial, because appellant was entitled to damages for all that portion of the personal property which had been destroyed by fire prior to the trial and was entitled to a judgment for the value of that portion of said property which was in esse at the time of the trial. R. S. 1899, sec. 4476; Dillard v. McClure, 64 Mo. App. 488.
    
      C. G. Shepard and McKay & Corbett for respondents.
    This finding of the court was manifestly erroneous, as it has always been held by the appellate courts of this State in replevin proceedings, that the value of the property must be assessed at its value on the date of trial, and if the property is live property and dies, or is other personal property and is destroyed in the hands of the defendant pending the suit, the plaintiff has no just claim for more than damages for the detention of the property up to the time of its death or destruction, unless the property be shown to have been destroyed or died by reason of the negligence or fault of the defendant. Pope v. Jenkins, 30 Mo. 528; Jennings v. Sparkman, 48 Mo. App. 245; Hinchey v. Koch, 42 Mo. App. 230; Burlceholder v. Rudrow, 19 Mo. App. 60; Miller v. Bryden, 34 Mo. App. 602; Chapman v. Kerr, 80 Mo. 158; Mix v. Kemper, 81 Mo. 93. .
   BLAND, P. J.

This action is replevin, brought against defendant Mary Campbell, for the recovery of specific persona] property, consisting of household and kitchen furniture alleged to be of the value of $400. Plaintiffs executed the ordinary replevin bond and on service of the writ on defendant Mary Campbell, she executed a statutory delivery bond and retained possession of the property. At the close of plaintiffs’ evideuce and after Mary Campbell had testified in her own behalf, on her motion, her husband, C. Campbell was made a party defendant. The evidence shows that after she had executed her delivery bond, Mary Campbell stored the furniture and that all of it, except a few chairs, was accidentally destroyed by fire. The canse was submitted to the court without a jury. After hearing the evidence, the court found the issues for plaintiffs and assessed the value of the property at 1368.40. Defendants filed a motion for new trial which the court sustained for the reason it was of opinion that plaintiffs were not entitled to recover, as at the time the cause was tried, the property had been destroyed by fire while in the possession of defendant Mary Campbell and after she had executed her delivery bond for it. The appeal is from the order sustaining the motion for new trial.

Section 4476 of the replevin act provides that if the defendant fail in his defense, and “have not the property in possession, the court or jury shall assess the damages, and the judgment shall be against the defendant and his sureties, for the damages so assessed.” When the defendant gives bond and retains the property and sells the same before the trial, the plaintiff is entitled to its actual value at the time of the sale. [Dillard v. McClure, 64 Mo. App. 488.] The general rule is that the value of the property should be assessed at the time of the trial. [Richey v. Burnes, 83 Mo. 362; Standard Oil Co. v. Meyer Bros. Drug Co., 84 Mo. App. 76; Pope v. Jenkins, 30 Mo. 528.] The latter case was to replevy a slave retained by the defendant on giving a forthcoming bond. The slave died preceding the suit. The court held that the defendant was not an insurer of the life of the slave and it would be manifestly unjust to make him responsible for the act of Providence which no prudence could avert and which would probably have occurred had the possession been with the adversary. Jennings v. Sparkman, 48 Mo. App. 246, was replevin for a number of mules retained by defendant by giving a forthcoming bond. One of the mules died pending the suit. The court held plaintiff could recover nothing under the head of value for the dead mule unless he could show that the death happended through negligence or other fault of the defendant; that if he could, he was entitled to its value at the time of death. Cobbey says: “Where property dies or is destroyed pending the suit Avithout fault of the defendant, he should not ansAver in damages for the value of the property so lost.” [Cobbey on Replevin (2 Ed.), sec. 881.] The contrary rule applies where the plaintiff takes the property and is found not to be entitled to its possession, for he is a Avrongdoer from the beginning and is liable for its loss by act of God or otherwise. [Cobbey on Replevin, sec. 830 and cases cited in footnote.] All the property was not lost in the fire; some chairs were rescued, shown to be worth $3.50 at the time of the trial. Judgment for this amount should have been entered for plaintiffs.

2. But defendants contend that the motion for new trial should have been sustained on other grounds set forth in the motion. The evidence is that defendants executed, acknoAvledged and delivered to plaintiffs an absolute bill of sale for all the property described, and at the same time took from defendants a lease of the property and of a hotel building where it was situated and in use. The consideration for the bill of sale was that defendants would pay at maturity their five promissory notes for $200, each of which plaintiffs had‘ indorsed or signed as sureties. The bill of sale was duly recorded in the recorder’s office of Pemiscot county, September 13, 1905. The record recites that defendants offered a chattel mortgage in evidence but it is not set out in the record nor is its substance stated. The place for it in the bill of exceptions is blank. We are therefore left entirely in the dark as to its contents and hence have no facts before ns from which Ave can determine whether the court erred in refusing- certain-instructions, the refusal of Avhich is assigned as error for which the court should have granted a new trial. I think the judgment should be reversed and judgment entered for the proved value of the chairs rescued from the fire, but Judges Goode and Nortoni are of opinion that the burning of the property did not release defendants from their obligation to account to plaintiffs for the value of the property, and cite Van Zile on Bailments, sees. 61 and 64; George v. Hewlett, 70 Miss. 1; and Heard v. Hicks, 101 Ala. 102, as supporting their contention. The judgment is therefore reversed and the cause remanded with directions • to the trial court to set aside the order granting a new trial, to overrule, the motion for new trial and to enter judgment for the ascertained value of the property replevied, to-wit, $368.40.  