ON MOTION POE EEHEAEING-.
ELLISON, J.-:-:-. liability of vendee.
The chief ground urged for a rehearing is based on the contention that we are wrong in holding that plaintiffs’ replevin suits whereby they regained possession of a portion of their cattle barred a recovery in this action for damages as to such cattle. It is contended by defendants that plaintiffs had the right to recover the same damage in their replevin suits that they obtained in this suit, and that therefore the wrong was fully redressed and their injury compensated by the judgment in those suits.
An examination of the authorities satisfies us that the view we expressed in the foregoing opinion is correct. There was no fraud, malice or oppression on the *266part of the defendants in the replevin suits, they were innocent purchasers of the cattle from the defendants in this suit. They were therefore not liable for attorneys’ fees. Trimble v. Kerr, 56 Mo. App. 683; Mix v. Kemper, 81 Mo. 93; Wells on Replevin, secs. 576, 577. Nor were they liable for the expenses of the plaintiffs in attending the trials of those cases, or in hunting their property. Taylor v. Morton, 61 Miss. 24; Cowden v. Lockridge, 60 Miss. 385; Reddington v. Nunan, 60 Cal. 639; Cobbey on Replevin, see. 920.
The statute in this state allows damages “for the taking and detention” of the property. R. S. 1889, sec. 7481. But, ordinarily, in the absence of fraud or malice, this provision would be satisfied by a recovery of the property itself with damages for any injury thereto, or for the use thereof (if its use was of any value) with costs.
The measure of plaintiffs’ damage in the replevin suits was not the same as in this action in conversion and they therefore had a right, as permitted by the trial court, to deduct from the sum of the mitigation of damage caused by their recovery of the property, the expense of such recovery.
defendants have cited us authority to the effect that where a plaintiff in replevin fails to obtain possession of the property the damages should be the same as in trover. This perhaps refers to the value of the property thus lost. But whatever may be said of these authorities, as affected by our statute, they have no application to this case. Here plaintiffs did obtain the property by their suit. The act of plaintiffs benefited defendants by lessening the damage occasioned by the conversion and the expense of plaintiffs’ successful effort in defendants’ behalf should be deducted from the sum of the mitigation.
The motion will be overruled.
All concur.