#### GRUBBS v. FERGUSON.

(Filed September 27, 1904).

1. ISSUES — Compromise and Settlement.

In an action to recover money paid under protest, the submission of an issue as to whether on a certain date the plaintiff and the defendant had compromised their differences was error.

2. EVIDENCE — Compromise and Settlement — Accounts.

In an action to recover certain money paid under protest, a note alleged to have been given by plaintiff to defendants in settlement of his accounts, which plaintiff had paid, is competent to show an absence of indebtedness.

3. EVIDENCE — Compromise and Settlement.

In an action to recover money paid under protest, evidence of the arrest of plaintiff is not material to an issue as to whether a note executed by the plaintiff to the-defendant prior to the arrest was a final settlement between the parties.

4. AGENCY — Compromise and Settlement — Evidence.

Where the plaintiff claimed to have compromised a matter with an agent, the defendant may show that the authority of the agent was limited.

5. ACTIONS — Dismissal—Abatement.

Where two actions for the same cause are pending, and the first action is dismissed for that reason, the second action will not be dismissed^ on account of the pendency of the former action at the time of the commencement of the subsequent action.

*61AotioN by W. F. Grubbs against- W. B. Ferguson and Company, beard by Judge M. II. Justice and a jury, at August Term, 1903, of tbe Superior Court of NORTHAMPTON County. From a judgment for tbe plaintiff tbe defendants appealed.

Gay & Midyette and W. E. Daniel, for the plaintiff.

Peebles & Harris and Winborne & Lawrence, for the defendants.

Montgomery, J.

In tbe original complaint tbe plaintiff set forth two causes of action. Tbe first one was in tbe nature of an action for damages for false arrest, and tbe second was for breach of a contract. Tbe allegations of the first cause of action were, in substance, that tbe plaintiff in January, 1894, settled all matters of account between him and tbe defendants by tbe execution of bis promissory note to tbe defendants in tbe sum of $325, and that be paid that note at maturity; that after tbe note bad been paid, tbe defendants sued out of tbe Circuit Court of Nansemond County in tbe State of Virginia two writs against tbe plaintiff, one in debt for $528 and one in assumpsit for $700, and caused tbe plaintiff here, tbe defendant there, who was then on a visit to Suffolk, Va., to be arrested and held to bail for bis appearance; that tbe defendants in issuing tbe writs against the plaintiff were actuated by malice and without probable cause, and that tbe plaintiff was injured to tbe amount of $5,000.

Tbe second cause of action was that tbe plaintiff was forced and compelled by tbe bringing of those suits in Virginia by tbe defendants to pay to them, under protest, tbe amount of $770, when in truth and in fact be owed tbe defendants nothing; that at tbe time tbe plaintiff paid tbe $770 it was agreed between him and tbe defendants that *62they would pay back to tbe plaintiff so much of the amount as the plaintiff could show was not due to the defendants, and that no part was due to the defendants and no part thereof has been paid back to the plaintiff.

The first cause of action was nol prossed at the Fall Term, 1899, of Northampton Superior Court, and we have only to consider on the appeal matters connected with the second cause of action.

Two issues were submitted to the jury as follows: “1. Were all the matters of account and all other indebtedness by note or otherwise between the plaintiff and the defendants, or either of them, compromised or settled on or about January 30, 1894, and fixed at the sum of $325, for which a note was given by the plaintiff to defendants, as alleged in the complaint ?” “2. Are the defendants indebted to the plaintiff, and if so, in what amount?”

The defendants objected to the first issue on the ground that it did not arise on the pleadings, that is, upon the plaintiff’s second cause of action (the first having been nol prossed) and the answer. • We think that the objection to that issue was well taken. As we have before said, the second cause of action was for the recovery of an amount of money because of a breach of contract on the part of the defendants, which we have stated in substance in setting out the plaintiff’s second cause of action. The allegation of the plaintiff, - as we have seen, was that the defendants forced the plaintiff to pay them $770 which he did not owe to the defendants, through the process of the courts, by means of which the amount was extorted from him, with a promise, however, on the part of the defendants to pay back to the plaintiff so much thereof as the plaintiff could show was no,t due to them. The present action then on the part of the plaintiff, as we have seen, is to recover the amount which he paid to the defendants under duress on the ground *63tbat be did not owe it or any part of tbe same, and tbat tbe defendants agreed to do so if be could show tbat it was not due. Tbe first issue then did not arise on tbe pleadings in tbe second cause of action, and bad no connection with tbe matters there involved, except as a matter of evidence, wbicb we shall presently discuss.

Tbe second issue: “Are tbe defendants indebted to tbe plaintiff, and if so, in what amount?” is tbe issue wbicb ought to have been submitted, and tbe only one wbicb ought to have been submitted to tbe jury. Under tbe second issue tbe plaintiff could, of course, have used as evidence tbe note for $325 executed by himself to tbe defendants in January, 1894, itself to show tbat be did not owe tbe defendant anything at tbe time they sued him in Virginia, or any other facts tending to show tbat tbat note was given in full settlement of all demands against him by tbe defendants.

But if the issue bad been a proper one bis Honor committed error in refusing to give without qualification the first prayer for instructions of the defendants, wbicb was in these words: “Tbat the fact tbat the defendants entered suit in the Circuit Court in Virginia against the plaintiff to recover a debt due by him to the defendants, and bad the plaintiff arrested, as appears in the evidence, the arrest should not be considered by the jury in deciding the first issue.” His Honor qualified tbat instruction by telling the jury tbat the evidence is competent and may be considered to throw light on the transaction of January 30, 1894, if it does so. Tbat evidence could in no sense throw any light on the question whether or not the note executed by the plaintiff to the defendants in January, 1894, was a final settlement between the parties. It was greatly prejudicial to the defendants in tbat it bad the effect of placing them, in the eyes of the jury, as men who bad used the machinery *64of the law to extort money which was not due to them. Eor the error pointed out there must be a new trial.

But there was another one on so vital a point that we deem it necessary to call attention to it. The plaintiff had undertaken to show that Butler, the book-keeper of the defendants, was sent out hy them to the home of the plaintiff in North Carolina with full power to settle all matters of difference between the plaintiff and the defendants, and that .such a settlement was made when the note for $325 was executed in January, 1894. Butler testified that his agency was limited; that he told the plaintiff the extent of it, and that he was only authorized to settle one particular matter of business out of many transactions which were then outstanding between the parties. The defendants offered to show by Ferguson, one of the defendants, that the agency of Butler was a limited one and did not extend to a settlement of all the business matters between his firm and the plaintiff. His Honor refused to receive it as substantive evidence, and admitted it only as corroborative of the testimony of Butler.

A book-keeper, as such, of a business man, would not be authorized in law to adjust and settle matters in dispute between his employer and others. If he made such a transaction he would have to he specially authorized to do so; and it seems to us to be evidence, most natural and substantive, to show by the employer the nature and extent of his agent’s authority. That persons who deal with an agent must look to the extent of the agent’s authority is a principle of law too familiar to need the support of authority.

It is not necessary to notice any other of the exceptions of the defendants, and we do not pass upon them one way or the other, except -that one to the failure of his Honor to dismiss the action on the ground that there was another action similar in character in all respects to the present one when the latter was commenced. That was true, hut *65nearly two years after tbe present action was instituted the defendants instead of moving to dismiss tbe latter one made a motion to dismiss tbe former, and a judgment to that effect was rendered and tbe case stricken from tbe docket. They made tbe way clear for tbe present action.

For tbe errors pointed out there must be a

New Trial.