Grubbs v. W.B. Ferguson & Co.

• Decision Date: 27 September 1904
• Citation: 48 S.E. 551,136 N.C. 60
• Parties: GRUBBS v. W. B. FERGUSON & CO.
• Court: North Carolina Supreme Court

48 S.E. 551

136 N.C. 60

GRUBBS v. W. B. FERGUSON & CO.

Supreme Court of North Carolina

September 27, 1904

Appeal from Superior Court, Northampton County; Justice, Judge.

Action by W. F. Grubbs against W. B. Ferguson & Co. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Where plaintiff made an alleged settlement of his accounts with defendants' bookkeeper, and it was claimed that the bookkeeper's authority was special, and that he was authorized to settle one particular matter of business evidence of one of defendants that the bookkeeper's agency was limited, and did not extend to a settlement of all the business matters between plaintiff and defendant firm was admissible.

Peebles & Harris and Winborne & Lawrence, for appellants.

Gay & Midyette and W. E. Daniel, for appellee.

MONTGOMERY J.

In the original complaint the plaintiff set forth two causes of action. The first one was in the nature of an action for damages for false arrest, and the second was for breach of a contract. The allegations of the first cause of action were in substance, that the plaintiff in January, 1894, settled all matters of account between him and the defendants by the execution of his promissory note to the defendants in the sum of $325, and that he paid that note at maturity; that, after the note had been paid, the defendants sued out of the circuit court of Nansemond county, in the state of Virginia, two writs against the plaintiff--one in debt for $528, and one in assumpsit for $700--and caused the plaintiff here, the defendant there, who was then on a visit to Suffolk, Va., to be arrested and held to bail for his appearance; that the defendants, in issuing the writ against the plaintiff, were actuated by malice, and without probable cause; and that the plaintiff was injured to the amount of $5,000. The second cause of action was that the plaintiff was forced and compelled, by the bringing of those suits in Virginia by the defendants, to pay to them, under protest, the amount of $770, when in truth and in fact he owed the defendants nothing; that at the time the plaintiff paid the $770 it was agreed between him and the defendants that they would pay back to the 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 non 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 non 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...