Davis v. Hargett
| Decision Date | 23 May 1956 |
| Docket Number | No. 596,596 |
| Citation | 92 S.E.2d 782,244 N.C. 157 |
| Court | North Carolina Supreme Court |
| Parties | , 58 A.L.R.2d 494 Sam DAVIS v. N. E. HARGETT and Textile Insurance Company. |
Harry R. Stanley and Alexander & Windsor, Greensboro, for plaintiff, appellant.
Howerton & Howerton, Greensboro, for defendant Hargett, appellee.
Armistead W. Sapp, Greensboro, for defendant Textile Insurance Company, appellee.
Plaintiff alleges that, by reason of the oppression, fraud and duress practiced and imposed upon him by defendants, he was induced to compromise for $5,000 his original cause of action for damages against the operators and owners of the two taxicabs; that he has affirmed the compromise settlement whereby the original tort-feasors were released from further liability; but that he is entitled to recover from defendants, jointly and severally, on account of their said wrongful conduct, the value of his original cause of action, to wit, $35,000 subject to credit for the $5,000 received by him incident to said compromise settlement.
Plaintiff's brief so analyzes the complaint. Excerpts therefrom: Again: 'In his complaint, the plaintiff alleges a fraudulent release and elects to affirm it, then alleges a cause of action for personal injury as property and asks the jury to determine its true value under standard rules fixed by law for the admeasurement of damages in negligence cases.' Again:
Hence, there is no need to point out in detail the facts alleged which show an affirmance or ratification by plaintiff of the compromise settlement and releases. Presnell v. Liner, 218 N.C. 152, 10 S.E.2d 639; Sherrill v. Little, 193 N.C. 736, 138 S.E. 14, and cases cited therein.
At the time thereof, plaintiff was fully aware that he was effecting a compromise settlement and executing full releases as to his original cause of action. Later, after his confidence in Hargett had been alienated and they became adversary litigants, plaintiff recovered from Hargett the balance of the $5,000 not theretofore paid to him or for his benefit by Hargett.
For purposes of decision on this appeal, we assume, under the facts alleged, (1) that plaintiff had a cause of action for damages (worth in excess of $5,000) against the operators and owners of the two taxicabs, and (2) that he was induced to make the compromise settlement and execute releases by defendants' wrongful acts of oppression, fraud and duress.
In such case, when the duress was removed and plaintiff became a free agent, he could have maintained his original action, avoiding the compromise settlement and releases if they were pleaded in bar of his right to recover. Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43, and Butler v. Armour Fertilizer Works, 195 N.C. 409, 142 S.E. 483, are typical of such cases. As a prerequisite to such action, plaintiff would have been required to tender or return the portion of the compromise consideration under his control when the duress was removed. Presnell v. Liner, supra; Sherrill v. Little, supra.
In his brief, plaintiff states frankly that he makes no contention that he lost his original cause of action by the alleged wrongful conduct of defendants. Plaintiff had three years from 3 June, 1954, when the collision occurred, within which to bring such action. G.S. § 1-52, subd. 5. See Annotation: 'Right of action for fraud or deceit causing loss of remedy.' L.R.A.1917F, 719.
Plaintiff's contention is that his original cause of action was property, wrongfully taken from him by the defendants, and that in this situation he had the legal right to elect as between two remedies, that is, (1) to rescind the compromise settlement and prosecute his original cause of action, or (2) to affirm the compromise settlement and recover damages from defendants for the difference in value between the true worth of his original cause of action and the consideration actually received by him in the settlement. Plaintiff cites no authority in support of his position relating to a similar factual situation. He contends that the general principles declared in numerous cases involving fraudulent sales and conveyances should be applied here.
Unquestionably, where a sale is induced by false and fraudulent representations the defrauded purchaser may elect to affirm the contract as executed; and, having done so, by independent action or by counterclaim...
To continue reading
Request your trial
-
Triplett v. St. Amour
...out of the settlement of a tort claim. See, e.g., Mackley v. Allstate Ins. Co., 564 S.W.2d 634 (Mo.App., 1978); 3 Davis v. Hargett, 244 N.C. 157, 92 S.E.2d 782 (1956). See also Taylor v. Federal Kemper Ins. Co., 534 F.Supp. 196 (W.D.Ark., By contrast, other courts have allowed a party to pu......
-
Exotics Hawaii v. E.I. Du Pont De Nemours
...vitiates the contract and places the parties in status quo prior to the transaction") (citation omitted); Davis v. Hargett, 244 N.C. 157, 92 S.E.2d 782, 786 (1956) (holding that the plaintiff could not affirm the release and recover the difference between the value of his original claim and......
-
Shallenberger v. Motorists Mut. Ins. Co.
...& Ohio Rd. Co., supra, 151 Ohio St. 1, 84 N.E.2d 214; Linard v. Pennsylvania R. Co., 6 Cir., 1950, 181 F.2d 342; Davis v. Hargett, 1956, 244 N.C. 157, 92 S.E.2d 782. See Whitman v. Seaboard Air Line Ry., 107 S.C. 200, 92 S.E. 861, L.R.A.1917F, 717. So far as it approved maintenance of such ......
-
Matsuura v. Alston & Bird
...v. Hopper, 207 Cal. 102, 276 P. 990, 991-92 (Cal.1929) (holding that defrauded tort plaintiffs may only rescind); Davis v. Hargett, 244 N.C. 157, 92 S.E.2d 782, 786 (N.C.1956) (same). Michigan permits tort plaintiffs to sue defendants' insurers for fraudulent inducement without rescinding t......