141 A. 686 | Vt. | 1928
The original complaint contained four counts, all in tort form, the writ issued as a capias, and the defendant was arrested thereon. The case came on for hearing below, and the plaintiff was allowed without exception to strike out the fourth count of the complaint. Thereupon, a trial was had by the court, and after the evidence was all in, the defendant moved to dismiss the action on the ground that the fourth count was in contract and the court was without jurisdiction under the holding in Roy v.Phelps,
The case made by this fourth count does not differ in essence from the case above cited. There, an executor had settled his final account, and had been ordered by the probate court to pay over to the plaintiff a specified sum of money. Instead of doing so, the defendant converted the money to his own use. Here, the defendant did not deposit the money as directed by the plaintiff, but converted it to his use. One so defrauded may bring an action of tort in the nature of an action on the case for his damages. To be sure, a broken promise is no fraud. But the subsequent appropriation of the plaintiff's money, which is the basis of this action, was a fraud upon the plaintiff, for which the law gives a remedy by way of a body action. See Snyder v. Parmalee,
Judgment affirmed.