64 Vt. 358 | Vt. | 1892
Lead Opinion
The opinion of the court was delivered by
The plaintiff had the defendant’s horse on trial* under a supposed contract of purchase. Before the time of trial expired, the plaintiff was summoned as trustee in a suit against the defendant, brought by one Blodgett. At the expiration of the time of trial the defendant, against the protest of the plaintiff, took the horse away, a controversy having arisen between them as to the terms of the contract, the plaintiff claiming the price agreed upon was fifty dollars, the defendant that it was sixty. The defendant knew of the trastee suit at the time he took the horse, and that the plaintiff objected to his taking it for that reason. The defendant had no right, at the time, to take the horse, as it was lawfully impounded in the plaintiff’s hands to await the termination of the trustee suit, and is liable for nominal damages in any event, as the legal right of the plaintiff was invaded. Is he liable for the value of the animal? The jury found that the plaintiff did not purchase the horse. In the trustee suit the defendant and the plaintiff, as his trustee, were defaulted and the plaintiff adjudged liable as trustee in the amount of the judgment, fifty-three and 1-100 dollars, which he paid. The jury found the latter sum to have been the value of the horse. The defendant does not contend but that if the plaintiff had appeared in the trustee suit, and disclosed that, at the time of the service of the trustee writ, he had the horse in his possession, he would have been adjudged chargeable in respect of the specific property, under R. L. s. 1111, and then we think it must be conceded that the defendant would be liable in this suit for the value of the horse. Had the plaintiff been held under said section, it would have been his duty, under R. L. s 1119, to deliver the horse to the officer holding the execution, that it might be sold thereon, and by so doing relieve himself from liability iñ the trustee suit. But the act of the defendant in taking the horse from the plaintiff had made it impossible for the latter to
Judgment affirmed.
Dissenting Opinion
dissents, and would hold the plaintiff entitled to nominal damages only. .