37 Vt. 594 | Vt. | 1865
This is in form, an action of trover. The case was referred under a rule of court, and the referee has reported all the facts. It is well settled, that if the report shows a case upon .which the plaintiff has a right of recovery under any amendment of the declaration that might lawfully be made, the court will render such a judgment as, under a proper declaration, the plaintiff would, be entitled to. It is plain, in this case, that it would have been lawful to permit an amendment, by adding a count in case, setting forth the special facts, embracing as the gravamen the wrongful conduct of the defendant in setting up the note as valid, constituting a debt owing by the plaintiff to himself, and thus putting the plaintiff in peril,, and rendering it necessary for him to take. measures to protect himself, and therein incurring expense.
We make these remarks in view of an aspect of the case which will be mentioned hereafter.
It was not permissible for the defendant to repudiate such character, thus given by him to the note, after this suit had been brought, and thereby defeat rights and avoid liabilities which existed at the time of bringing the suit. At that time, in the character given to the note by the defendant, the plaintiff was entitled to it, and the defendant refused to give it up on demand, and his insisting on having it paid to him by the plaintiff constituted a conversion, for which trover might be maintained; and, if only the question of nominal damages was involved, we should have no difficulty with the caá6 under the declaration in trover. But the referee has found that the plaintiff has sustained ten dollars actual damages, as the result of the defendant’s conduct, but this does not enter into, or constitute the
The expenses of this suit, beyond the taxable costs, cannot be embraced as such damage. They are not of that character of special damage resulting as a consequence of the defendant’s wrongful act, as to constitute a ground of recovery in the action itself.
Judgment is reversed, and judgment rendered for the plaintiff for ten dollars damages, and his costs in the county court.