Hodgeden v. Hubbard
Supreme
Court of
18 Vt. 504, 46 Am.Dec. 167.
Prosser, pp. 111-112
Facts: The plaintiff bought a
stove on credit and started taking it away.
The defendants found out that the plaintiff had bad credit and went to
take back the stove. They took it back
by force and, in the course of doing so, the plaintiff pulled a knife on
them. The plaintiff sued for assault and
battery and conversion of the stove. The
trial court found for the plaintiff for $1.
The defendants appealed.
Issue: Do property owners have the
privilege of taking back their property by force when it is taken from them
fraudulently?
Rule: Property owners have the
right to recover chattel if it can be done “without unnecessary violence to the
person, or without breach of the peace”.
Furthermore, “there is no privilege on the part of the wrongdoer to
resist”.[1]
Analysis: The court focuses on the
fact that the plaintiff drew a knife, at which point he became the aggressor. The plaintiff should not have resisted the defendants’
repossessing of the ill-gotten goods. If
the plaintiff hadn’t resisted, there would have been no force necessary to
recapture the chattel. Therefore, the defendants’
contact was privileged.
Conclusion: The judgment of the trial
court is reversed.
Notes
and Questions
1. Watson v. Rheinderknecht can be distinguished in that the plaintiff
had already taken “peaceable possession” of the chattel in controversy (some
sheep) when the defendant forcibly tried to take it from him and injured
him. The defendant should have used the
courts to try to get the sheep back.
2. According to
the Restatement § 103, what constitutes the “timely” use of force to retake a
chattel is all relative.
3. The law values
the integrity of the person over the possession of property, although not as
much as you might expect. You can’t use
force with the intent or likelihood to cause death or serious bodily harm. You also have to ask for the chattel back
before you start using force, unless you reasonably believe that the request to
get the thing back will be useless.
4. There aren’t
many cases that deal with this, but there is loss due to a reasonable mistake,
the person who makes the mistake must absorb the loss.
5. If you’re a creditor
and your debtor defaults on their payments but refuses to give up the chattel
in question, you must resort to your legal remedy and you must not take away
the chattel by force. However, what is
meant by force has been a subject of disagreement.
6. It is a matter
of disagreement whether or not a clause in a contract entitling a seller to use
force to recover property in case of default is effective. I dunno if the
problem is “one of the scope of the privilege of recapture or whether consent
should be invalidated”.
7. So this is no
longer a common law issue, it’s statutory.