plaintiff for judgment on the pleadings, where there has been a general denial, is properly overruled.22

Where the defendant answers by a general denial, evidence that ownership of the property is in a third person is admissible.23 An averment additional to the general denial that the defendant is the owner of the property, and that it had been delivered to him by an officer who seized it in replevin between the same parties, does not enlarge the issues raised by the general denial.2*

§ 1730. Evidence admissible

Any evidence is admissible which properly determines ownership and the right of possession,25 but evidence outside the issues is not admissible.20

possession, taken in enforcing a lien for unpaid rent. Wester v. Long, 66 P. 1032, 63 Kan. 876.

In replevin by a mortgagee for the possession of the mortgaged property, defendant may, under a general denial, defeat a recovery by proof that, after the execution and delivery of the mortgage, she sold the property to the mortgagee, who refused to take it and pay the contract price. Deford v. Hutchison, 26 P. 60, 45 Kan. 332, modifying judgment 25 P. 641, 45 Kan. 318, 11 L. R. A. 257.

One claiming a lien for repairs and care bestowed on a vehicle may show under his general denial that plaintiff parted with the ownership and right of possession before commencement of the action. Ely v. Holloway, 147 P. 1128, 95 Kan. 8.

In replevin, with general denial plaintiffs were entitled to have submitted to the jury not only whether a contract of exchange under which defendant claimed title had been actually completed, but, whether, if there was a contract, it was invalid for fraud of defendant. Campbell v. Mowrer, 155 P. 956, . 97 Kan. 496.

Defendant may prove that a chattel mortgage relied on by plaintiff is void under the law of the state where made without pleading it. Woods County Union Bank v. Shore, 123 P. 880, 87 Kan. 140.

22 White v. Gemeny, 28 P. 1011, 47 Kan. 741, 27 Am. St. Rep. 320.

23 McLaughlin v. Dugan (Okl.) 166 P. 1069.

24 Street v. Morgan, 67 P. 448, 64 Kan. 85.

25 In replevin against a cropper for crops, evidence that the landlord had surrendered or abandoned his title under contract to purchase under which he claimed when he made contract with the cropper is admissible. Merchants' Nat. Bank of Sallisaw v. Frazier, 60 Okl. 156, 159 P. 647.

In replevin by a lessor against a creditor of the lessee for property which plaintiff claims by virtue of the lease, which gave him an agister's lien, securing the payment of rent, the lease and the note for rent are admissible in evidence, notwithstanding plaintiff had recovered judgment against the lessee for the rent. Parkhurst v. Sharp, 61 P. 531, 10 Kan. App. 575.

26 Where replevin is brought by the owner to recover possession of cattle

The affidavit in replevin is competent evidence against plaintiff as to the value of the property replevied.27

Where defendant claims the property under a sale made under a chattel mortgage, he may introduce such mortgage in evidence.28 Plaintiff may attack the mortgage on which defendant relies when both the parties claim title under the same person." He may prove that, subsequent to the commencement of the action, defendant has sold and assigned all his right to, or claim upon, the property in dispute, since that fact, if established, would disentitle defendant to a return of the property.30

The exclusion of evidence that plaintiffs were indebted to defendants, when offered to show want of malice in the taking, is not error. 31

Testimony that persons other than the plaintiff claimed the property is not admissible unless it is shown, or offered to be shown, that the right claimed is derived through the plaintiff or owner of such property.32

§ 1731. Sufficiency of evidence

The sufficiency of the evidence in replevin is to be determined in accordance with the general rules of evidence under the facts of each particular case.83

held by a sheriff under an order of the live stock sanitary commission requiring him to hold said cattle in quarantine, and plaintiff does not allege payment prior to the commencement of the action, nor file supplemental pleading, alleging payment subsequent thereto of the expense of keeping the cattle, evidence tending to show such payment is inadmissible, and constitutes no valid defense to the action. Hardwick v. Brookover, 30 P. 21, 48 Kan. 609.

In replevin for wheat taken from a bin, evidence of the ownership of the land on which the bin was located was not admissible to establish ownership of the wheat. Wilson v. Panne, 41 P. 984, 1 Kan. App. 721.

27 American Box Ball Co. v. Wood, 50 Okl. 242, 150 P. 1047; First Nat. Bank v. Staab, 171 P. 3, 102 Kan, 369.

28 Shattuck v. Hall, 42 P. 1101, 3 Kan. App. 374.

29 State Bank of St. John v. Norduff, 43 P. 312, 2 Kan. App. 55.

30 Campbell v. Quinton, 45 P. 914, 4 Kan. App. 317.

31 Ray v. Navarre, 47 Okl. 438, 147 P. 1019.

32 Kennett v. Fickel, 21 P. 93, 41 Kan. 211.

83 A sheriff levied an execution on a warehouse, but his return was silent as to whether he took it into his possession. In replevin for the warehouse, brought against the sheriff by one claiming to be the owner, plaintiff testified that she had kept the key, and used and permitted others to use the building, since the levy, and that the defendant could not get into it unless he broke

Where plaintiff in replevin alleges and proves ownership, defendant, in order to prevail on his claim of fraudulent conveyance by a judgment debtor, must show something more substantial than a mere conjecture or suspicion of wrongdoing."

34

ARTICLE V

DAMAGES

Sections

1732. Elements of compensation.
1733. Exemplary damages.

§ 1732. Elements of compensation

In replevin, the measure of damages is properly fixed by adding to the value of the use of the usable property its usable value from the time of the taking to the date of judgment, and to the value of the rest of the property interest thereon for the same time.35

the lock. Held, that no wrongful detention by the defendant was shown and that there was no error in sustaining defendant's demurrer to the evidence. Brand v. Hedwick, 23 P. 111, 43 Kan. 131.

In an action for replevin, evidence held insufficient to sustain a judgment for defendant. Harrison Bank v. Porter, 87 P. 585, 17 Okl. 256.

Evidence held not to show that plaintiff was estopped to maintain replevin. Alexander v. Busch (Okl.) 166 P. 900, L. R. A. 1918E, 125. In replevin, verdict allowing recovery of damages for detention of personalty cannot be sustained in absence of any evidence of damages. Id.

In a replevin action, evidence held insufficient to sustain verdict and judgment for plaintiff for possession of property or its value, awarding damages for wrongful detention. Lucas. v. King (Okl.) 172 P. 939.

In action of replevin for cattle covered by mortgage, judgment denying claim of an intervener claiming under subsequent mortgage was sustained by the evidence. Jowa Nat. Bank v. Citizens' Nat. Bank of Woonsocket, R. I. (Okl.) 172 P. 924.

In action of replevin by chattel mortgagee, evidence held not sufficient to sustain a verdict and judgment for defendant for damages for wrongful de tention of property. McAnaw v. Williamson (Okl.) 171 P. 715.

Evidence in an action by a surety on a lease, to whom the lessee had yielded possession, to replevin corn raised on the premises by plaintiff's tenant, and sold by him to defendant, held insufficient to prove that plaintiff had title to the corn. Dudley v. Fisher, 45 Okl. 709, 146 P. 708.

34 Alderson v. Hume, 139 P. 955, 40 Okl, 533.

36 State Bank of Stockton v. Showers, 70 P. 332, 65 Kan. 431; Hunt v. Cohen (Okl.) 179 P. 1; Rev. Laws 1910, § 4807; Francis v. Guaranty State Bank of Texola, 145 P. 324, 44 Okl. 446; Kennett v. Fickel, 21 P. 93, 41 Kan. 211; Wer

The reasonable value of the use of such property during wrongful detention is determined by the ordinary market price of such use at the place of taking. If the property has no usable value, the measure of damages for the wrongful detention is the interest on the value of the property while wrongfully detained.37 A general allegation of damages authorizes the recovery of distinct usable value.3

38

Where animals distrained for damages are replevied by the owner, the defendant may, in the replevin action, recover for the damage done by the animals.39

A judgment wherein no damages were alleged, based on evidence of speculative damages, cannot be sustained, though no objection was made to the admission of the evidence.40

To support an award of damages to the defendant in replevin, he must show that he was entitled to possession at the time the suit was commenced.11

A judgment for the plaintiffs for an amount certain as the value of the property is improper, without evidence of value.42

ner v. Graley, 38 P. 482, 54 Kan. 383; Weleetka Light & Water Co. v. Castleberry. 142 P. 1006, 42 Okl. 745.

The measure of damages for the wrongful detention of a team of work mules is the usable value thereof while they were wrongfully detained. First State Bank of Mannsville v. Howell, 137 P. 657, 41 Okl. 216; Same v. Lawson, 137 P. 661, 41 Okl. 226.

36 Thomas v. First Nat. Bank of Tecumseh, 121 P. 272, 32 Okl. 115, Ann. Cas. 1914A, 376; Francis v. Guaranty State Bank of Texola, 145 P. 324, 44 Okl. 446.

87 Werner v. Graley, 38 P. 482, 54 Kan. 383.

38 Chilton v. Carpenter, 78 Okl. 210, 189 P. 747.

39 Bottoms v. Clark, 38 Okl. 243, 132 P. 903. Where animals distrained by two persons were replevied by the owner, each defendant could recover his separate damages caused by the animals and establish a lien therefor. Id. Where about 25 head of cattle belonging to plaintiff trespassed on defendant, who was able to impound only 5 head, held that, in a replevin action brought by plaintiff, defendant was entitled to judgment for damages done by the entire herd. Holmberg v. Will, 52 Okl. 745, 153 P. 832.

40 Smith v. Bryant, 41 P. 1069, 1 Kan. App. 754.

In replevin to recover 10 horses, the cost of caring for 15 other horses belonging to plaintiffs in another town, while the 10 were detained, cannot be recovered as damages, on the ground that plaintiffs intended to ship all of the horses to market in one car, as such damages are too remote and speculative. Haas v. Tough, 72 P. 856, 67 Kan. 253.

41 J. E. McMillan Hardware Co. v. Ross, 104 P. 343, 24 Okl. 696. 42 Gross v. Lincoln (Okl.) 196 P. 960.

§ 1733. Exemplary damages

A verdict assessing exemplary damages is proper, where the defendants, without legal process, and by force and threats of violence, and against the plaintiff's consent, carried away personalty belonging to them, and a verdict, assessing damages for plaintiffs, will not be set aside for excessiveness in including smart money, where it appears that the taking was vexatious and oppressive. But in the absence of such fraud or oppression the granting of exemplary damages is error.**

ARTICLE VI

TRIAL, JUDGMENT, ENFORCEMENT OF JUDGMENT, AND REVIEW

§ 1734. Failure to prosecute

"If the property has been delivered to the plaintiff, and judgment rendered against him, on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of

43 Ray v. Navarre, 47 Okl. 438, 147 P. 1019; Rev. Laws 1910, § 2851. Exemplary damages are recoverable for oppression, fraud, or malice. Lanyon v. Byus (Okl.) 197 P. 162.

44 McCormick Harvesting Mach. Co. v. Drake, 48 P. 944, 5 Kan. App. 852; Remund v. McCool, 50 Okl. 69, 150 P. 1055.