Thomas v. Catawba College , 248 N.C. 609 ( 1958 )

104 S.E.2d 175 (1958) 248 N.C. 609

Christopher J. THOMAS
v.
CATAWBA COLLEGE.

No. 738.

Supreme Court of North Carolina.

June 30, 1958.

Barnie P. Jones and W. R. Dalton, Jr., Burlington, for plaintiff, appellant.

McLendon, Brim, Holderness & Brooks, C. T. Leonard, Jr., Greensboro, and Linn & Linn, Salisbury, for defendant, appellee.

BOBBITT, Justice.

No evidence was offered to support plaintiff's further allegations that defendant, after plaintiff's discharge, made statements, false, wilful, malicious or otherwise, to prospective employers of plaintiff, and thereby interfered with plaintiff's efforts to obtain other employment; and no evidence was offered to support plaintiff's allegations that the Board of Trustees acted "maliciously, tortiously and wilfully" to carry out a preconceived and deliberate scheme to ruin plaintiff. Indeed, a witness for plaintiff testified that each member of the Board of Trustees was "a man of outstanding reputation and character" and undertook to serve the college in the capacity of Trustee "with absolute faithfulness and honesty" and in obedience to what he conceived to be his conscientious duty. Without further comment, we pass from these unsupported allegations of the complaint.

The Board of Trustees terminated plaintiff's employment as of February 23, 1952. Conceding the power of the Board of Trustees to discharge him, thus severing his connection with Catawba College, plaintiff denies the right of the Board of Trustees to discharge him otherwise than for "adequate cause." He contends that "adequate cause" for his discharge did not exist. Hence, he contends he was discharged wrongfully.

Consideration of the record leaves the impression that the proceedings before the hearing committee and Board of Trustees were in good faith and in substantial compliance with paragraph (a) (4) of the tenure policy. However, the basis of decision, stated below, renders unnecessary the discussion or decision of questions raised as to whether the action of the Board of Trustees when rendered was a final determination that plaintiff's dismissal was for "adequate cause."

Plaintiff had full notice and knowledge that his dismissal was based on the determination by the hearing committee and the Board of Trustees that "adequate cause" for his dismissal existed. Moreover, he had full notice and knowledge that the resolution of the Board of Trustees, quoted in the notification of dismissal, contained this provision: "Further, as provided in the tenure policy of the college his salary shall be continued for one year from date of this notice. Payments thereunder are to be made in accordance with the standard pay schedule of the college." Thus, he was advised plainly that the $4,175 paid to him during the year following notification of dismissal was paid to him as salary.

Obviously, the provision in paragraph (a) (4) of the tenure policy, regarding payment of salary for one year following notification of dismissal, is applicable only when "adequate cause" for dismissal has been determined after proceedings conducted in accordance with its terms; and, in such case, the payment of the discharged employee's salary for one year is both the measure and the limit of defendant's obligation. It does not bear upon the respective rights of the parties in case of wrongful discharge in breach of contract. In the latter case, the discharged employee's remedy is an action to recover damages for defendant's breach of contract.

The wrongful discharge of plaintiff by defendant, if such occurred, would constitute a breach of defendant's contract with plaintiff and give rise to a cause of action in favor of plaintiff and against defendant; but in such action the measure of the damages recoverable would be the actual loss or damage sustained on account of the breach. The maximum amount recoverable would be the difference, if any, between the agreed compensation and the amount plaintiff earned or by reasonable effort could earn during the contract period. Smith v. Cashie & Chowan R. & Lumber Co., 142 N.C. 26, 54 S.E. 788, 5 L.R.A.,N.S., 439; Currier v. W. M. Ritter Lumber Co., 150 N.C. 694, 64 S.E. 763; Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735; Durham Construction Co. v. Wright, 189 N.C. 456, 127 S.E. 580; Hall v. Durham Loan & Trust Co., 200 N.C. 734, 158 S.E. 388; Robinson v. McAlhaney, 216 N.C. 674, 6 S.E.2d 517; 35 Am.Jur., Master and Servant, Secs. 54 and 57; 56 C.J.S. Master and Servant § 59.

Thus, if plaintiff elected to acquiesce in his dismissal by the Board of Trustees, as expressed in its resolution, he was entitled thereunder to salary payments aggregating $4,175 for the year following notification of his dismissal and, in addition, was entitled to whatever he earned from other employment during that year. On the other hand, if plaintiff elected to treat his dismissal as wrongful and sue for damages for breach of contract, and obtained other employment in which he earned compensation equal to or in excess of his compensation as a member of the faculty of Catawba College, his recovery would be limited to nominal damages.

If plaintiff were wrongfully discharged, he could elect to pursue either course but not both; for his rights and remedies under the alternatives available to him were essentially different and inconsistent.

"The whole doctrine of election is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other." Quoted by Hoke, J. (later C. J.), in Machine Co. v. Owings, 140 N.C. 503, 53 S.E. 345, 346, this statement expresses succinctly the well established rule in this jurisdiction. Surratt v. Chas. E. Lambeth Insurance Agency, 244 N.C. 121, 93 S.E.2d 72, and cases cited.

Plaintiff made his election when he accepted, endorsed and collected the salary checks aggregating $4,175.00, paid as directed by the resolution of the Board of Trustees, for the year following notification of his dismissal. The law will not permit him now to assert different rights or pursue a different remedy. Perhaps, when he made his election, his impression was that he could and would earn equal or greater compensation in other employment. Be that as it may, having made his election, whether he earned more or less than $4,175.00 from other employment during the year following notification of his dismissal has no bearing upon his right to maintain this action for alleged wrongful discharge.

Having reached the conclusion that plaintiff's said election constitutes a complete bar to his right to maintain this action, the judgment of nonsuit is affirmed.

Affirmed.