5 N.E. the day on which he bought the ticket he rode over the defendant's road to Salem from Lawrence, but returned by another route. On July 7th he took the train at Lawrence for Salem. Before starting he had expended all the money he had, but honestly believed that the ticket which he had was good to carry him to Salem, where he expected to collect a sum of money. He did not intend to evade payment of his fare. When the conductor, to whom he was personally known, asked him for his ticket, he offered the ticket above mentioned, but it was refused; the conductor refusing to take it, on the ground that it was not good in that direction, and demanding of the plaintiff payment of his fare. The latter then stated his belief that the ticket was good, and told the conductor why he had no money. He also stated that he expected to get some money in Salem; that it was necessary for him to get there that morning, and that he would pay the fare on his return at night, and that the conductor might keep the ticket as security. Other passengers stated in the hearing of the conductor that he had carried them on return tickets like this one, and no denial was made. The conductor refused to accept the plaintiff's offer, and called him opprobrious names, which he repeated at times until the train reached Salem. In the mean time officers had been telegraphed for by the conductor, and on the arrival of the train at Salem the plaintiff was arrested and removed to the station-house; the conductor having pointed him out as the person to be arrested for having evaded his fare. The conductor followed to the police station, where he signed and swore to a complaint charging the plaintiff with fraudulently evading his fare. Upon this complaint, the plaintiff was confined in the police station for 12 hours, when he procured bail. About two weeks afterwards, the complaint against the plaintiff was tried, and the latter acquitted. The conductor had been in the habit of taking round-trip tickets in cases like this. He was acting under the orders and rules of the defendant in making the arrest, complaint, and prosecution. Upon the offer of proof, the defendant requested the court to rule that the action could not be maintained, and the court so ruled, ordering a verdict for the defendant, and the case was reported for the determination of the full court. Sherman & Bell, for plaintiff. F. L. Evans, for defendant. C. ALLEN, J. The defendant contends that the ticket did not entitle the plaintiff to be carried the second time from Lawrence to Salem, and the cases cited by him will support this proposition. The plaintiff, indeed, no longer controverts it, but now insists that he may nevertheless prevail by proving that the conductor acted without probable cause and maliciously, and that there was sufficient evidence for the jury on these points, and in this we agree with him. Ripley v. McBarron, 125 Mass. 272. Want of probable cause, and malice, on the part of the conductor, if established, may be imputed to the corporation. Reed v. Home Sav. Bank, 130 Mass. 445. But the report does not show whether the conductor believed the plaintiff's story, or whether he was acting in good faith in causing the arrest and making the complaint. His honest and reasonable belief is a necessary element in determining upon the questions of probable cause and malice, and since this is not found in his favor, there must be a new trial. Good v. French, 115 Mass. 201-203; Bacon v. Towne, 4 Cush. 217-239. 1. EJECTMENT DAMAGES-RENTS AND PROFITS-ERECTION OF NEW BUILDINGS. A. brought an action of ejectment against B., and prevailed, and the case was sent to an assessor to determine the amount of damages sustained by A., by reason of the withholding from him by the defendant of the premises in question. The buildings upon the premises had been partially destroyed by fire. Neither A. nor the lessee expressed or entertained any intention of repairing or rebuilding the premises. B.'s grantor removed the old buildings, and erected a new one, larger, more expensive, and more valuable than the old building, yielding much larger rents and profits. B.'s grantors acted in good faith, and in the belief that they were entitled to the possession of the premises. Held, that the measure of damages should have, as its basis, compensation to A. for the injury he had sustained, and should be, as in an action of trespass for mesne profits, a sum which, upon just and equitable principles, will furnish compensation or indemnity, and that A. should be placed in as good a position as he would have been in if the defendant had not dispossessed him. 2. SAME-ALLOWANCE FOR EXPENSES IN CARING FOR PROPERTY. Held, that the assessor rightly deducted from the gross rents and profits, which might have been received from the estate, a fair compensation for the necessary time and labor involved in care and management of the premises, and in the collection of rents. 8. SAME-YEARLY RENT-INTEREST. Where the plaintiff was dispossessed of certain premises, he is also entitled to receive from the defendant the amount which the said premises would have yielded him each year, with simple interest only from the time when such sums might have been realized by him. 4. SAME-COMPOUND INTEREST. It is against the policy of this commonwealth to allow compound interest. The facts appear in the opinion. J. A. Fogg, for plaintiff. S. Lincoln and G. B. Ives, for defendant. MORTON, C. J. After the former decision in this case it was referred to an assessor, "to determine the amount of damages sustained by the plaintiff by reason of the withholding from him by the defendants of premises described in the plaintiff's declaration." Hodgkins v. Price, 137 Mass. 13. The case now comes before us upon the assessor's report. The plaintiff argues that many of the findings of facts by the assessor are not supported by the evidence. But the evidence before him is not reported. We must take the facts found by him to be true, and the only questions properly before us are such questions of law as are warranted by the report. The principal of these questions is as to the rule of damages which ought to be applied under the peculiar circumstances of this case. The assessor finds that the buildings described in the lease to the grantor of 5 N.E. the plaintiff were partially destroyed by fire on May 21, 1875; that neither the lessee nor the plaintiff expressed or entertained any intention of repairing or rebuilding the premises; that the defendant's grantor, in July, 1875, began to remove the remains of the old building, and afterwards erected a new building, which was finished in March, 1876, and which was much larger, more expensive and valuable than the old building, and yielded much larger rents and profits, and that the defendants, and their grantors, in so doing, acted under the advice of counsel, in good faith, and in the belief that they were entitled to the possession of the premises. In an action like this the rule of damages should have, as its basis, compensation to the plaintiff for the injury he has sustained. The measure of damages should be, as in an action of trespass for mesne profits, a sum which, upon just and equitable principles, will furnish such compensation or indemnity. The plaintiff should be placed in as good a position as he would have been in if the defendants had not dispossessed him. It seems to us clear that the plaintiff's claim, that he is entitled to the whole amount of the rents and profits from the improved estate, without any deduction for such improvements, is unjust and unreasonable. He would thus receive more than compensation. He would gain more than he had lost, and would enrich himself at the expense of defendants. We think he has no good reason to complain of the first rule adopted by the assessor in his report, at the request of the defendants. This rule is that the measure of damages is the same as it would have been if the defendants had wrongfully withheld possession of the demised premises for the same length of time, in substantially the same condition in which they were just prior to such fire. In fact, at the time the plaintiff was dispossessed, a part of the buildings had been burned and could not be used or leased to tenants. The landlord was not obliged to repair, and the tenants had no intention of doing so, and could not do so except at considerable expense. In assuming that the buildings were in the same condition as just before the fire, in order to determine the value of the plaintiff's lease, and his damages by being dispossessed, the assessor assumed facts which could not but operate in the plaintiff's favor. The ruling was sufficiently favorable to the plaintiff. If the defendants had objected, we might have found it difficult to hold that it was not too favorable. In determining what were the plaintiff's damages upon this basis, the assessor deducted, from the gross rents and profits which might have been received from the estate, a fair compensation for the necessary time and labor involved in the care and management of the premises, and in the collection of rents. This was right. The buildings described in the plaintiff's lease were designed and adapted for stores and offices, and were underlet to the tenants for such purposes. A fair measure of the value of the lease to the plaintiff is the amount he could realize by prudent management over and above the rent and charges he would be obliged to pay. In order to receive his rents and profits, if he had been in possession, he would have been obliged either to pay such sum, or to furnish its equivalent in his own labor and services. The assessor has reported these alternative findings upon the question of damages. As we have adopted his first finding, it is unnecessary to consider the questions of law he reports, which were applicable only to the other two findings. The only remaining question is as to the interest to which the plaintiff is entitled. As we understand the assessor's report, he has found that the fair value of the lease to the plaintiff was $250 for each year in which he was dispossessed; that is, if he had been in possession, he would have received that sum each year as his net profits. We think the defendants are liable for interest, in damages, for the detention of those amounts, and that the damages found by the assessor should be increased accordingly. The plaintiff claims that interest should be computed by making quarterly rests. It has been repeatedly held in this commonwealth that it is against the policy of the law to allow compound interest, and we can see no reason why the general rule of allowing only simple interest should be departed from in this case. Shaw v. Norfolk Co. R. Co., 16 Gray, 407; Henry v. Flagg, 13 Metc. 64; Wilcox v. Howland, 23 Pick. 167. The result of the whole case is that the plaintiff is entitled to judgment according to the first finding of the assessor, adding thereto interest upon each yearly sum of $250 from the time when it might have been realized by the plaintiff, if he had not been ejected. As this is a matter of computation, it is not necessary to recommit the report. Order accordingly. 1. MUNICIPAL CORPORATIONS-LICENSE TO ERECT STATIONARY STEAM-ENGINE IN FACTORY. A. was the owner of a brick building used as a manufactory of shoes, situated within 500 feet of the dwelling-house of B., in the city of N. After a hearing, the board of aldermen of N. granted to A. a license to erect for use, a stationary steam-engine, to be propelled by steam-power, in “his shoe manufactory on Prince street;" the license being duly recorded. Held, that the license sufficiently prescribed the place where the building was to be erected in which such engine was to be used, and that A. did not violate or exceed his license by covering it with an engine-house added to his building, and built of the same material as the factory. 2 SAME-DISCRETION OF MAYOR AND ALDERMEN-PUB. ST. CH. 102, § 47. In granting a license for the erection and use of a stationary steam-engine under Pub. St. c. 102, § 47, it is discretionary with the board of mayor and aldermen whether or not to make regulations as to the height of the flues to be used in connection with said engine. The facts appear in the opinion. MORTON, C. J. This cause was set down for hearing, and was heard upon the bill and answer. All the allegations of the answer must be taken to be true, and the plaintiff therefore concedes that the only ground upon which she can maintain the bill is that the license granted to the 5 N.E. defendant by the board of aldermen of Newburyport is insufficient and invalid. The defendant is the owner of a brick building used as a manufactory of shoes, situated within 500 feet of the plaintiff's dwelling house. After due hearing, the board of aldermen granted him a license in the following terms: "CITY OF NEWBURYPORT-STEAM-ENGINE LICENSE. "This is to certify that Nathan D. Dodge has been licensed by the board of aldermen of the city of Newburyport to erect for use a stationary engine, to be propelled by steam-power, at his shoe manufactory on Prince St. This license was duly recorded. Pub. St. c. 102, § 47, provide that no stationary engine, propelled by steam or other motive power, shall be put up within 500 feet of a dwelling-house, unless a license therefor has been first granted and recorded in the manner herein provided." The manner of granting such license is found in section 40 of the same chapter, which provides for the granting of licenses by the mayor and aldermen of cities and the selectmen of towns, "prescribing the place where the building shall be erected in which the steam engine or furnace is to be used, and the materials and construction thereof, with such regulations, as to the height of flues and protection against fire, as they deem necessary for the safety of the neighborhood." The defendant's license sufficiently prescribes the place, viz., at his shoe manufactory on Prince street; and, as the building in connection with which it was to be used was already erected, the designation of the building rendered unnecessary any other description of the materials, and construction thereof. The license contemplates that the defendant should erect the engine at and as a part of his shoe manufactory, and it would be too narrow a construction to hold that he violated or exceeded his license by covering it with an engine-house added to his building, and of the same materials. If it is essential, as a condition precedent to the validity of the license, that it should prescribe the materials and construction of the building, which we need not decide, we think the defendant's license does this sufficiently. The plaintiff objects that the license does not make any "regulations as to the height of flues." This was a matter within the discretion of the aldermen. By the statute, they may make "such regulations as to the height of flues, and protection against fire, as they deem necessary for the protection of the neighborhood." As, in this license, they made no such regulations, it must be assumed that they did not deem any to be necessary for the safety of the neighborhood. The omission to do so did not make the license void. Bill dismissed. |