Hudson v. Nute
45 Vt. 66
Vt.
1872
Check Treatment

The opinion of the court was delivered by

Redfield, J.

This action is assumpsit for the keep of defendant’s stage horse.s; and upon the agreed statement of the case, *68the question is raised whether the defendant’s special pleas in offset may be, legally, predicated upon the facts stated. The offset counts upon the refusal of the plaintiff to deliver defendant’s horses on demand. The plaintiff having the possession at the time of demand, the refusal to deliver was a conversion. The agreement was “ to keep defendant’s horses.” The withholding the possession from defendant was as much a tort as if he had sold or maliciously killed the horses. Our statute of offsets has been extended to unliquidated damages, Hubbard v. Fisher, 25 Vt. 539; Keyes v. Western Vt. Slate Co. 34 Vt. 81, which was not the case under the English statute. But it has not yet been extended to torts. In the case of Thompson v. Congdon, 43 Vt. 396, the court allowed the defendant to offset the use of a hired carriage, including the injury from hard usage, on the ground that there was an implied undertaking to use the carriage with due care and prudence. But the court has uniformly refused to blend, and make concurrent, actions of assumpsit and tort. Stearns v. Dillingham, 22 Vt. 624; Kidney v. Persons, 41 Vt. 386.

The judgment of the county court is affirmed.