Hodgeden v. Hubbard

If a person purchase personal property, such as a stove, by means of false and fraudulent representations as to his solvency and means of paying therefor, he acquires no right, either of property, or possession, and the vendor will be justified in pursuing him and retaking the property, using no more force than is necessary, to effect this object. And if the vendor retake the property by force, and use no more force than is necessary, no action will lie against him, at the suit of the purchaser, for assault and battery. And if the purchaser resist the retaking the property by the vendor, and draw his knife, be becomes the aggressor, and the vendor will be justified in using such additional force, as will be necessary to accomplish the obtaining the property.

Trespass for assault and battery, and for taking and carrying away a stove, the property of the plaintiff. Plea the general issue, with notice of special matter of defence, and trial by jury, — Red-field, J., presiding. On trial the plaintiff gave evidence, tending to prove, that, on the nineteenth day of September, 1842, he purchased at the Tyson ware house, in Montpelier, a stove, and gave his promissory note therefor, payable in six months; that the agent, who had charge of the warehouse, was absent at the times, and the sale was made by the defendant Hubbard, who was clerk for the agent, as was also the defendant Ayres; that on the same day, and soon after the sale, the defendants learned, that the plaintiff was irresponsible as to property, and started in pursuit of him, and overtook him about two miles from Montpelier and took the stove from him by force; but it did not appear, how much force was used, or its character; but it did appear, that, in the attempt to dispossess the plaintiff of the stove, he drew his knife, and that he was then forcibly held by one of the defendants, while the other took possession of the stove; and the testimony tended to prove, that the resistance of the plaintiff was such, that the defendants used violence and applied force to his person with great rudeness and outrage. The defendants then gave evidence, tending to prove that the purchase of the stove by the plaintiff was effected by means of his false and fraudulent representations as to his ability to pay, and as to the amount of his property ; that, among other things, the plaintiff represented, that he owned a farm in Cabot and considerable stock upon it, that he owned the team that he then had with him, and that he carried on a large business manufacturing butter firkins, &c.; that it was only by means of these representations, and others of like character, that Hubbard was induced to sell the stove to the plaintiff on credit; that soon after the delivery of the stove, on the same day, Hubbard learned, upon inquiry, from a person whom he saw from Cabot, that the plaintiff was entirely irresponsible, and that his representations as to his property were wholly false; and that the defendants immediately followed the plaintiff, and took the stove from him, and told him that he could have the note by calling for it. The defendants requested the court to instruct the jury, that, if they should find, that the purchase of the stove on credit was effected only by means of the false and fraudulent representations of the plaintiff, as above specified, the title to the stove did not vest in the plaintiff, and the defendants, as servants of the agent of the Tyson warehouse, were justified in pursuing the plaintiff and taking the stove from him by force, and that, if they used no more force, than was absolutely necessary to effect this object, the plaintiff could not recover upon his count for an assault and battery. But the court charged the jury, that, although the plaintiff was guilty of misrepresentation and fraud, in obtaining the stove, in the manner attempted to be proved by the defendants, yet this would not justify the defendants in forcibly taking the property from him; that the property in the stove would not be changed by the purchase, and the defendants might take it peaceably, wherever they could find it; but that the defendants, having delivered the stove to the plaintiff, cotfld not justify taking it from him by blows inflicted upon his person, or by holding him, but should resort to redress by legal process; and that, if they should find, that the property in the stove was not changed, for the reason stated, and that the defendants took it by violence, in the manner attempted to be shown by the plaintiff, although they used no more force than was necessary to accomplish that object under the resistance of the plaintiff, they would still be liable in this action ; but the court, in that case, recommended to the jury to give small damages. Verdict for plaintiff for one dollar damages. Exceptions by defendants. The plaintiff was guilty of obtaining the stove from the defendants by false pretences, and is liable, under chap. 95, sec. 15, of the Revised Statutes, to be punished by imprisonment. It has been decided in Massachusetts, (and was held by the county court in this case,) that no property passed to the plaintiff under this fraudulent contract, that his possession of the stove was tortious ab initio, and that the defendants, or their principal, could have maintained trover for the stove, without making a demand. Were the defendants, then, justified in their request to the court to instruct the jury, that they had the right to retake the stove from the plaintiff, in case he refused to surrender it to them, provided they used no more force than was absolutely necessary, to effect that object ? The doctrine is now well settled, that, if a man has a right of entry on land in the possession of another, he has a right to enter by force, if the person in possession endeavors to prevent him. Richardson v. Anthony, 12 Vt. 273. Yale v. Seeley et al., 15 Vt. 221. Hyatt v. Wood, 4 Johns. 150. . No adjudged case can be found, where a distinction betwen a right of entry and a right of recaption has been made the point of decision, and no distinction exists in the reason of the matter. When the defendants requested the plaintiff to give up the stove, it was his legal duty so to have done ; and when he resisted the attempt of the defendants to regain the possession of the stove, he became the first aggressor; and if, in such affray, caused by his own illegal act, he was injured in any way in his person, it was the consequence of his own unlawful act, and gives him no action against the defendants. Admitting that the title to the stove did not pass to the plaintiff, still the defendants had no right to retake it forcibly from the plaintiff, for the reason that the stove was in the plaintiff’s possession by their consent. The general rule is, that a man cannot recapture his property, when such recaption must occasion violence, or endanger the peace of society. 3 Bl. Com. 4. 1 Sw. Dig. 464. 8 T. R. 78. 7 Cow. 752. In this case the plaintiff had obtained the possession of the stove; and if the title did not pass to him, the defendants could have brought trover, or case.