McDonald v. Trustees of Fayetteville Technical Institute

ERWIN, Judge.

The ultimate question before us is the propriety of the trial court’s entry of the directed verdict. To ascertain this answer, we must consider whether plaintiff’s evidence when viewed in the light most favorable to him is sufficient for submission to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971).

Plaintiff’s letter dated 10 August 1976 provided in pertinent part:

“August 10, 1976

To Whom It May Concern:

As of August 10, 1976, I offer my resignation as an instructor at Fayetteville Technical Institute to be effective one month hence, September 10, 1976.

Fayetteville Technical Institute has been very good to me as I hate leaving, but opportunities elsewhere force me to render my resignation at this time.”

Defendant did not act upon plaintiff’s letter until 23 August 1976. Thus, this letter is not the determining factor in disposing of this case in view of the events that follow.

After receiving plaintiff’s letter, defendants’ agent, the president of the institute, called plaintiff to his office and told plaintiff that he could resign as of that day. Plaintiff wrote a letter of resignation, which was accepted by Mr. Boudreau, the president of the institute, stating:

“August 23, 1976

To Whom It May Concern:

This letter supercedes the letter dated August 10, 1976 whereby I resign my position at Fayetteville Technical Institute effective August 23, 1976.”

This evidence, when viewed in the light most favorable to plaintiff, tends to show an offer by defendants and an acceptance by plaintiff creating a new contract between the parties, i.e., to rescind the old one. It is clear that plaintiff and defendants in their execution of their new agreement intended to relieve plaintiff of his duties to teach under the employment contract and to relieve defendants of their duty to pay under the same contract. It is not equally clear that the parties intended to totally rescind the agreement as to its other provisions.

To have the effect of a total rescission, a subsequent contract must either deal with the subject matter of the former contract so comprehensively as to be complete within itself and to raise the legal inference of substitution, or it must present such inconsistencies with the first contract that the two cannot in any substantial respect stand together. Bank v. Supply Co., 226 N.C. 416, 38 S.E. 2d 503 (1946). Neither requirement is met here. The original contract expressly provided that plaintiff was subject to the rules and regulations of the Board of Trustees of the institute. Plaintiff admitted that he knew that rules and regulations sometimes took the form of policy and that one of the ways in which those policies were enunciated to the faculty was through faculty handbooks. In the 1976 handbook, it was specifically stated that:

“In the event an instructor under contract for the following school year is granted a leave of absence with pay and he either fails to honor such contract or resigns prior to commencement of the fall quarter for other than valid reasons, as determined by the President of the Institution, such absence will be classified as leave without pay and he will be required to refund to the Institution all salary including matching funds paid to him during this period of absence. Termination or failure to fulfill a contract to accept other employment will not be considered a valid reason.” (Emphasis added.)

The subsequent agreement entered into by the parties does not expressly refer to, revoke, or rescind the provision, nor is it necessarily inconsistent with it. That the court is the proper determiner of the legal effect of a later instrument in our State was established in Bank v. Supply Co., supra. We hold that the provision is enforceable, because it still subsists. See Bank v. Supply Co., supra. We have no doubt that the 1976 contract governs the parties. Plaintiff’s whole basis of recovery is based thereon, and plaintiff testified:

“I have not been paid anything for the month of August, 1976. I have computed the amount that I contend is due me to be $829.61. I divide 31 into $1,118.00 and then multiplied that times 3. The total of both of those figures, the $699.39 and the $829.61 comes to $1,529.00, and that is the amount that I contend is owed me by the Defendant.”

The contract expressly covers the period in question. Even so, we believe that plaintiff was entitled to have his case submitted to the jury. His contract entitles him to recover if his resignation did not take place prior to the commencement of the fall quarter. Plaintiff’s evidence tends to show that the first day of the fall quarter was 23 August 1976 and that he reported to work and subsequently submitted his resignation. This evidence, if believed, is sufficient to support a verdict for plaintiff, and the order entered below is

Reversed.

Judges CLARK and MARTIN (Harry C.) concur.