No question of pleading was raised at the trial, or is open upon these exceptions. The only objection to the instructions given as to the effect of an understanding between the parties that the plaintiff should be released from arrest and should make no claim against the defendant for damages was the contention that there was no evidence upon that question. Burnett v. Smith, 4 Gray, 50. Knight v. Overman Wheel Co. 174 Mass. 455, 465, 466.
We agree with the plaintiff that it is impossible to say as matter of law, however improbable it may be in fact, that the jury upon the judge’s charge may not have found that the defendant did either arrest or detain the plaintiff, and have based their finding for the defendant upon the ground that the defendant released him at his request or 'with his consent upon the understanding that he was to make no claim for damages. If accordingly there was no evidence to warrant such a finding, the exceptions must be sustained. Phillips v. Fadden, 125 Mass. 198. Brook v. Stimson, 108 Mass. 520.
But we are of opinion that from all the evidence the jury might reasonably have drawn the inference that there was such a request and understanding. The defendant testified that the plaintiff said he preferred to remain at the station over night, and that he was accordingly kept there and sent home in a carriage the next morning. The jury well might have found from this and the other evidence that the plaintiff desired to be kept there during the night and released and sent home the next morning, that is, that what was done was practically done at his request. This would bring the case within the doctrine of Caffrey v. Drugan, 144 Mass. 294. In that ease, as in this, there was no direct evidence of an agreement to make no claim for damages, but only of the plaintiff’s request to be released; and it was held that an instruction like that now complained of should have been given. To the same effect see Joyce v. Parkhurst, 150 Mass. 248. The jury might find that everything was amicably understood between the parties.
The question of the defendant’s liability for participating with Tremaine in an unlawful arrest or imprisonment of the plaintiff was left to the jury with proper instructions.
Exceptions overruled.