Fowler v. Nationwide Insurance Company

124 S.E.2d 520 (1962)

256 N.C. 555

Earl J. FOWLER v. NATIONWIDE INSURANCE COMPANY, William R. Eastridge and Max Wilson.

No. 95.

Supreme Court of North Carolina.

March 21, 1962.

*521 Lee & Allen, Asheville, for plaintiffappellant.

Williams, Williams & Morris, by Robert R. Williams, Jr., Asheville, for defendants-appellees.

RODMAN, Justice.

The right to recover damages resulting from a wrongful interference with a contract for personal services has long been recognized. Haskins v. Royster, 70 N.C. 601; Jones v. Stanly, 76 N.C. 355; State of Arkansas v. State of Texas, 346 U.S. 368, 74 S. Ct. 109, 98 L. Ed. 80; Edwards v. Dowdy, 85 Ga.App. 876, 70 S.E.2d 608; Lurie v. New Amsterdam Casualty Co., 270 N.Y. 379, 1 N.E.2d 472; Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 214 N.W. 754, 84 A.L.R. 35; Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176, and the numerous authorities there cited.

For the purpose of this appeal it may be conceded that plaintiff's evidence relating to the breach of the contract of 3 October would have sufficed to support a verdict for wrongfully inducing Whitaker to breach her contract had plaintiff elected to pursue that course; but he waived that right and took in payment for his services a sum which he fixed as fair compensation. That payment and the release then given Whitaker, so long as it remained in force, released defendants from liability.

Plaintiff, ignorant of the fraud causing him to consent to the release, could, upon discovering the facts, have maintained an action to set the release aside and for damages resulting from the fraudulent interference with his contractual rights; but when, with knowledge of the facts, he elected to make a new contract for the *522 same services, he substituted the new for the old; the original thereupon ceased to exist. The acceptance of benefits under the new contract was a complete bar to plaintiff's original right of action. Morgan v. Speight, 242 N.C. 603, 89 S.E.2d 137; Bixler v. Britton, 192 N.C. 199, 134 S.E. 488; Burns v. McFarland, 146 N.C. 382, 59 S.E. 1011; Swift v. Beaty, 39 Tenn.App. 292, 282 S.W.2d 655; Krause v. Hartford Accident & Indemnity Co., 331 Mich. 19, 49 N.W.2d 41; Bailey v. Banister, 10 Cir., 200 F.2d 683; 12 Am.Jur. 1041; 17 C.J.S. § 394 Contracts, p. 885.

Affirmed.

SHARP, J., took no part in the consideration or decision of this case.