## Facts

- Hodgeden bought a stove at a warehouse in Montpelier on credit, giving a six-month promissory note.
- To obtain credit, Hodgeden made false representations about his solvency and property.
- Soon after delivery, the sellers’ clerks learned the representations were false and that Hodgeden was insolvent.
- The clerks immediately pursued Hodgeden and caught him about two miles from town.
- During the attempt to retake the stove, Hodgeden resisted and drew a knife.
- One clerk restrained Hodgeden while the other took the stove; testimony conflicted about whether the clerks used excessive force.

## Issues

1. Whether a seller may promptly pursue and retake goods when the buyer obtained them through fraudulent misrepresentations.
2. Whether the seller is liable for assault and battery merely for using force in retaking the chattel, or only if the force was unnecessary or excessive, including when the buyer escalates resistance by drawing a weapon.
3. Whether the trial court erred by instructing that any force used to repossess the stove made the sellers liable.

## Decision

- The Supreme Court of Vermont reversed the judgment for the plaintiff and remanded for a new trial.
- A buyer who obtains goods by fraudulent misrepresentations acquires no right of property or lawful possession as against the seller.
- The seller is privileged to pursue immediately and retake the goods, using no more force than necessary to accomplish repossession.
- The trial court’s instruction was erroneous because it treated any force as actionable, rather than conditioning liability on unnecessary violence or a breach of the peace.
- If the buyer resists and becomes the aggressor (including by drawing a knife), the seller may use such additional force as is necessary to recover the chattel.

## Legal Principles

- Fraud in the procurement of a credit sale can vitiate the buyer’s claim to lawful possession as against the defrauded seller.
- A person entitled to immediate possession may recapture a chattel in fresh pursuit, but only by using force reasonably necessary and without unnecessary violence or provoking a breach of the peace.
- An action for assault and battery does not lie against the repossessing owner when only necessary force is used to retake the chattel.
- Armed or aggressive resistance by the wrongful possessor can justify proportionate additional force required to complete repossession.
- Jury instructions must permit the jury to assess necessity and proportionality of force, not impose strict liability based solely on the presence of force.

## Conclusion

The court held that a seller defrauded into delivering a chattel may immediately pursue and retake it through limited self-help, and that tort liability for assault and battery turns on whether the repossession involved unnecessary or excessive force, particularly in light of resistance by the wrongful possessor.


Hodgeden v. Hubbard, 18 Vt. 504 (Vt. 1846)