
    William E. Burke, as Receiver of the Copartnership Property, Assets and Effects of the Firm of Mertz & Gibb, Respondent, v. Henry Graham, Appellant.
    
      Replevin — when the value of a horse, which died, after possession had been retaken by the defendant, may not be recovered by the plaintiff—right of a party to assume that the judgment will, be consistent with the ruling of the court.
    
    On the trial of an action brought to replevin two horses named respectively “ Khitai ” and “Judge Wardell ” it appeared that previous to the trial the defendant had, pursuant to section 1704 of the Code of Civil Procedure, retaken ■ hoth the horses, and that while in the possession of the defendánt the horse . “Khitai” had died. The court directed the jury to find the value of the' horses as of the date of the trial, together with such damages as the plaintiff" sustained by reason of the detention, charging that the plaintiff could not. recover damages for the death of the horse “Khitai” unless its death was • occasioned by some fault on the part of the defendant. The jury found a ver- ■ diet for the plaintiff, in which they stated that no damages were awarded for detention of the horses; that $100 was the value of the horse “Judge Wardell ” at.the time of the trial, and that $2,000 was the value of the horse “ Khitai ” at the time of-liis death; upon which verdict a judgment was entered for $2,000 ■ damages for taking and detention of the horse “Khitai,” and for the return of the horse “ Judge Wardell” or the recovery of the sum of $100.
    
      Held, that, applying the charge of the court to the findings of the jury, the plaintiff was not entitled to judgment for the value of the horse that died;
    That the defendant had the right to rely upon the assumption that no judgment, would he rendered against him inconsistent with the rule of law charged'by the- ' court.'
    
      Appeal by the defendant, Henry Graham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      C. Elliott Minor, for the appellant.
    
      Albert A. Wray [Charles D. O'Connell with him on the brief], for the respondent.
   Miller, J.:

The defendant appeals from an order denying a motion for a n'ew trial, and from a judgment entered on the verdict of a jury in favor of the plaintiff, who sues as receiver of a copartnership to recover two race horses claimed to have been the property of the copartnership at the time of the appointment of the plaintiff as receiver. Thé plaintiff was appointed as receiver on the 21st day of August, 1901. The defendant claimed to have purchased the. horses on the 19th day of August, 1901, from one -of the copartners who was plaintiff in the action for a dissolution, and the moving party who obtained the order appointing plaintiff as receiver, The trial court submitted' the case to the jury to find whether a bona fide sale was made to the defendant on the, 19th day of August, 1901, as claimed by him. I think there was sufficient evidence to. justify the submission of that question to the jury, but it is unnecessary to determine that question because the judgment must be reversed for other reasons.

The action was tried in January, 1904. The only evidence offered by the plaintiff as to the value of the horses related to their value on the 21st day'of August, 1901, the date of the appointment of the, receiver. This evidence was received over the objection and exception of the defendant. It appeared that the horse “ Khitai ” died in September, 1903, in the possession of the defendant, the horses having been retaken by the defendant pursuant to section 1704 of the Code of Civil Procedure. The court directed the jury to find the value of the horses as of the date of the trial, together with such damages as the plaintiff, sustained by reason of the detention, charging that the plaintiff could not recover damages for the death of the horse Khitai ” unless its death was occasioned by some fault on the part of the defendant. The jury found a verdict for the plaintiff, .in which they stated that no damages were awarded for detention of the horses; that $100 was the value of the horse “Judge Wardell” at the time of the trial, and that $2,000 was the value of the horse “Khitai” at-the time of his death;'upon which verdict a judgment was entered for $2,000 damages for taking and detention of the horse “Khitai,” and for the return of the horse “Judge Wardell” or the recovery of the sum of $100. The defendant moved to set aside the verdict on the usual grounds.

Section 1726 of the Code of Civil- Procedure provides.that the verdict of the jury znust fix the damages sustained by the plaintiff, if any, and fix the value of the chattel at the time of the trial.

The jury have found that the death of the horse “Khitai’-’ was not due to the negligence of the defendant, and, in accordance with the instructions of the court, found no damages for detention, but, upon the finding that'the horse was worth $2,600 at the time of his death, a judgment for $2,000 damages has been rendered against the defendant. We may assuzne that the plaintiff could recover, as ■a part of his damages, for the death of the horse without regard to the question of defendant’s negligence, but, applying the charge of the court to the findings of the .jury, the plaintiff was not entitled to a judgment for the value of the horse that died; we think there was nót sufficient evidence of the value of the horse “ Khitai ” at the time of his death to warrant the submission of that question to the jury, and, although the court’s attention does not appear to have been called specifically to the point, the defendant had a right to rely upon the assumption that no judgznent would be rendered inconsistent with the rule of law chaz'ged by the court.

The judgment and order appealed from should, therefore, be reversed and a new trial granted, costs to abide the event.

Hibschberg-, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  